Citizen Enforcement of Texas Abortion Ban Could Spread to Other Laws

This story was originally posted by Stateline, an initiative of the Pew Charitable Trusts.

The Texas anti-abortion law that incentivizes ordinary people to file lawsuits against health care providers has human rights advocates and legal experts worried that the legal maneuver will spread to other states—and other social issues.

So far, the citizen enforcement clause in the Texas law has fulfilled its intended purpose, dramatically curtailing the number of abortions performed in the state since it took effect Sept. 1.

Abortion rights advocates worry that the legal gambit will quickly expand to other state anti-abortion bills, potentially denying abortions to tens of thousands of people.

At least 14 other states could propose similar legislation, according to the Guttmacher Institute, a Washington, D.C.-based reproductive rights research and advocacy group: Alabama, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina and Tennessee.

But use of the private enforcement provision, which so far has stymied standard judicial practices in Texas, may not be limited to new anti-abortion laws.

Legal scholars predict that state lawmakers will start including citizen lawsuit provisions in other types of laws with the same goals: evading established judicial review and sowing discord in already deeply divided communities.

Two states already have used a similar legal tactic in laws that aim to prevent transgender youth from using facilities or playing on the sports teams that correspond to their gender identity.

A Tennessee law enacted this year allows students, parents or teachers to sue a public school and collect damages for alleged psychological, emotional or physical harm if the school allows students to use the same bathroom, sleeping quarters or changing facility as people of the opposite sex. The law seeks to prevent transgender students from using facilities that correspond to their gender identity.

Similarly, a Florida statute, enacted as an amendment to a K-12 school spending bill, allows students and parents to sue schools that allow transgender girls to compete in girls sports.

The Human Rights Campaign, a Washington-based LGBTQ advocacy group, has filed federal civil rights lawsuits seeking injunctions against both laws.

“These laws throw the rock of discrimination and then attempt to hide the hand of the State's responsibility in setting up a framework for private citizens to use the state's judicial system to enforce legislatively created 'rights' that clearly violate the U.S. Constitution and federal civil rights laws,” the group’s litigation director, Jason Starr, wrote in an email to Stateline.

Citizen Lawsuits

Beyond laws targeting transgender people, “there are a lot of other areas the citizen enforcement maneuver could spread to, where any constitutionally protected right could be undercut,” said Jon Michaels, a professor at University of California, Los Angeles School of Law.

People could be encouraged to start reporting immigrants living in the country illegally, violations of restrictive voting laws or the teaching of critical race theory in K-12 schools, among other possibilities, Michaels said. Complaints against schools, workplaces or businesses that require masks or proof of vaccines in states with laws banning mask and vaccine mandates also could crop up, he said.

“It’s a very disturbing trend,” said David Noll, a professor at Rutgers Law School. “These laws are stoking cultural and social divisions in much the same way as vigilantism is being used in far-right politics.

“There’s absolutely no magic bullet to prevent their spread,” he said. “State legislators will learn from one another as they pass these kinds of laws. It presents a great opportunity to engage in mischief or worse.”

Both Noll and Michaels said it was unlikely that liberal lawmakers would use similar citizen enforcement provisions to support causes such as gun restrictions, limits on political contributions or civil rights legislation.

But liberals have used a similar strategy in the past. In 1973, the Endangered Species Act ushered in a raft of lawsuits from private citizens who were empowered to sue individuals and businesses on behalf of nature for violating environmental rules.

According to Jefferson Decker, an associate professor of American studies at Rutgers University, “Conservatives were very suspicious about citizen-sue provisions. They were concerned about too many parties having interests and mucking up litigation. They worried about collusion, the sheer cost of litigation, and the courts intervening too much into American life.

“Conservatives now, for various reasons, including greater representation on courts, seem to have forgotten some of these concerns,” Decker said.

Circumventing Courts

Bans on abortion after six weeks, a time when many women don’t know they are pregnant, have been blocked by federal courts in eight other states: Georgia, Iowa, Kentucky, Mississippi, North Dakota, Ohio, South Carolina and Tennessee. But the Texas law was designed to make it difficult for a court to nullify the statute before it took effect.

Under SB 8, as the law is known, the state and its officers are barred from enforcement, making it impossible for a plaintiff to sue the state or its officials in federal court to block the statute.

“The goal was to not only limit abortion at six weeks but also to harass abortion providers and those supporting abortion patients by burying them in legal cases and threatening financial ruin,” said Elizabeth Nash, state policy associate with the Guttmacher Institute.

Supporters of the Texas statute say just the threat of citizen lawsuits was meant to persuade abortion providers to comply.

“The intention of the entire law was to stop most abortions at six weeks,” said John Seago, legislative director for Texas Right to Life, which supports the new law. “We didn’t want to see lawsuits. We were hoping that the abortion industry would comply. And so far, that’s what we’re actually seeing.”

In a state where roughly 53,000 abortions are performed every year, this law will prohibit 85% to 90% of abortions, Seago said. “That’s tens of thousands of women and unborn babies who are protected.”

The citizen enforcement clause in the Texas abortion ban was authored by attorney and former Texas Solicitor General Jonathan Mitchell. His idea was to circumvent what has become the standard legal response to abortion bans that conflict with the Supreme Court’s 1973 Roe v. Wade decision, which upheld the right to abortion before the fetus is viable.

For four decades, when an abortion ban has been signed into law but not yet in effect, abortion rights advocates have successfully sued in federal courts to prevent state officials from enforcing the laws, though the statutes remain on the books.

In a 2018 Virginia Law Review article, Mitchell wrote that, “Judicial review is not a power to suspend or ‘strike down’ legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.” Mitchell could not be reached for comment.

According to Seago, the citizen-lawsuit provision was an effort to break the cycle of “abortion rights advocates suing over Texas abortion laws in U.S. district court and getting activist judges to block them. The federal judges weren’t taking the state of Texas’ interests seriously.”

The new law will bypass those obstacles, he said. “It would be real people suing other individuals and local judges would be asked to look at whether the individuals have been harmed.”

In general, Seago said, “Conservatives want to keep the courts in their constitutional box. They want to make clear that the job of the court is not to determine whether they like a specific law or not. It’s to manage active controversy between two parties. That’s what SB 8 has done.”

As of Tuesday, two individuals, one from Arkansas and the other from Illinois, had filed lawsuits in a San Antonio court against a Texas doctor who acknowledged in an opinion article for The Washington Post that he had performed an abortion on a woman beyond the six-week threshold.

On Oct. 1, meanwhile, a federal judge in Austin, Texas, will hear oral arguments in a case brought by the U.S. Justice Department seeking an emergency order voiding the Texas abortion ban. The suit is among only a handful of 14th Amendment-based cases filed by the federal government against a state statute since the heyday of the civil rights movement.

In its complaint, the Justice Department asked the court to permanently prohibit “the State of Texas, including its officers, employees, and agents, including private parties who would bring suit under the law, from implementing or enforcing S.B. 8.”

The judge gave Texas until Sept. 29 to file its written response.