The Texas legislature is in the process of passing a law that would allow anyone in the state to sue abortion pill manufacturers and doctors who send abortion pills into Texas. People with no connection to someone seeking an abortion can collect at least $100,000 in damages, according to the New York Times. Abortion is already strictly criminalized in the state, but this is a measure meant to rally citizens as vigilantes, surveilling the activity of doctors out of state. And that’s what makes this law, like a similar one passed in Louisiana, so insidious.
To begin with, this law is not about preventing women in Texas from seeking abortions. Already, almost all abortions in Texas are outlawed, and this law would not apply to women in the state who seek medicine by mail. Nor would it apply to doctors in Texas, who already face up to life in prison for providing care. This law is about ensuring that doctors elsewhere don’t mail pills to Texas residents. (Doctors who, for what it’s worth, might not even know that a person is a Texas resident, if pills are sent to an address outside the state.) And crucially, these laws are not enforced by the state—they’re enforced by private parties who can sue doctors for damages.
Art by Mike Freiheit from Current Affairs Magazine Vol. 5, Issue 28
By shifting the burdens of enforcement, these laws are designed to evade judicial review. The prime example of this is Texas’s earliest modern abortion ban: S.B. 8. In 2021, Texas passed a law which effectively banned abortion after six weeks by allowing private individuals to sue anyone who performs an abortion in the state. The “bounty law” immediately faced lawsuits by abortion care providers who argued that it violated the constitution by impeding the right to an abortion. (This was a year before Roe was overturned.) But, in a sad preview of what was to come, the Supreme Court ruled that because the law was enforced by private individuals, and not the state of Texas, these providers could not seek relief from the law in court.
Texas’ success has inspired other states. Louisiana, Idaho, and Oklahoma passed similar abortion restrictions. And states have also used this tactic on other culture war fronts. Tennessee allows people to sue for “emotional harm” caused by schools that let transgender students use bathrooms that match their gender identities, and Florida enforces its “Don’t Say Gay” law by authorizing private lawsuits.
Of course, Democrats could match fire with fire. Law professors Jon Michaels and David Knoll have floated the idea of states allowing private citizens to sue their neighbors who store guns unsafely, or encouraging private lawsuits against major political donors who distort elections. But, as they note, “this intensely politicized and extremely conservative Supreme Court is never going to allow such laws to take effect. It’s not the best use of Democrats’ time and energy to try.”
This story was adapted from the Current Affairs News Briefing. Subscribe today!
