The Justice Department’s lawsuit last week against the state of Texas over its extreme new anti-abortion rights law isn’t just about abortion. Also at issue is the law’s bizarre enforcement mechanism, which effectively allows any private citizen to sue any abortion provider for profit. Attorney General Merrick Garland correctly noted that this citizen-empowerment mechanism, if allowed to stand, would set a dangerous precedent that could be applied to virtually any other hot-button issue.
There is a similar enforcement mechanism in Missouri’s new law seeking to nullify federal gun restrictions within the state. In addition to its blatantly unconstitutional claim to supersede federal law, it empowers a citizen to sue a local police department for $50,000 if the department enforces a federal firearm law against the citizen.
Both these laws are cynical attempts by Republican state politicians to enforce unconstitutional laws by shifting legal powers to private citizens instead of state officials. The obvious goal is incentivizing citizens (with cash) to impose right-wing ideology in ways that courts would deem unconstitutional if the state did it.
This novel strategy — which comes close to the dictionary definition of bounty hunting — could become the next big trend among conservative zealots to get around the Constitution on various issues. It must be stopped.
The Texas law effectively bans virtually any abortion upon detection of a fetal heartbeat. That’s roughly six weeks after fertilization, before many women even know they’re pregnant. It’s a blatant violation of the fetal-viability standard set by Roe v. Wade — or at least it would be, if the state itself tried to enforce it.
Instead, the law lets any citizen sue anyone who provides or otherwise assists in a banned abortion, with the incentive of collecting $10,000 plus legal costs if they win — and with no requirement of paying the defendants’ legal costs if they lose. It’s a risk-free invitation to zealots across the state to litigate abortion rights out of existence.
Ominously, this slippery strategy won in its first appearance before the U.S. Supreme Court this month. On a 5-4 vote, the court let the law go into immediate effect, denying an injunction that would commonly be granted regarding a new law that is under pending litigation. The majority said the fact that the state itself won’t be enforcing the law keeps the court out of it.
Chief Justice John Roberts, voting with the minority, saw right through that sophistry, slamming the private-citizen enforcement mechanism as an attempt by the state to “avoid responsibility for its laws.” He warned that this “unprecedented” scheme could serve “as a model for action in other areas.”
Garland made essentially the same argument in announcing the Justice Department suit against the Texas law. They’re both right. Denial of rights is denial of rights, whether it’s imposed by state officials or a profiteering mob.
