In Whole Woman’s Health v. Jackson, the U.S. Supreme Court again seems to have given more authority to Texas’ strict new anti-abortion law. The law, Texas Senate Bill 8 (SB 8), is the subject of much recent legal controversy, banning abortions after a fetal heartbeat is detected. Even more strikingly, the law states that citizens may sue anyone who “aids and abets” an illegal abortion and collect bounties of at least $10,000. But what is the provenance of such a bold new statute?
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Tracing the Legal Evolution
The New York Times identified the “conceptual force” behind the Texas anti-abortion law as a former Texas state solicitor general, Jonathan F. Mitchell, who was once a law clerk for U.S. Supreme Court Justice Antonin Scalia. Mitchell was one of the authors of another Texas anti-abortion law, which the U.S. Supreme Court struck down in 2016 in a 5-3 decision.
In part, the justices based that ruling on an attempt by that law to circumvent judicial review. “We reject Texas’ invitation to pave the way for legislatures to immunize their statutes” from constitutional review, Justice Stephen G. Breyer wrote in the majority’s opinion.
The Times reported that Mitchell was stung by that defeat and vowed to pursue another opportunity to develop another anti-abortion law with a better chance of success at the Supreme Court. Thus far, at least, he has been successful in that quest.
In 2018, Mitchell wrote a Virginia Law Review article that further explored his argument about the limits of federal constitutional challenges to state statutes. In it, Mitchell argued that the power of judicial review is not as strong as is commonly believed. He said that federal courts in their judicial review do not actually have the power to “strike down” state statutes. Instead, judges can only impose a “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.”
He went on to suggest that once legislators better understand these federal limitations, they should strive to create statutes that can be better shielded from federal challenges. He then laid out his argument for citizen enforcers: if a legislature is about to enact a law with a likelihood of federal constitutional challenge, it could “induce compliance with its statutes by providing for private enforcement through civil lawsuits.”
“These mechanisms are especially powerful,” he wrote, “because they enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.”
Sparking a Legal Movement
Although the Texas anti-abortion bill is the most dramatic example of Mitchell’s influence, others have applied his argument in smaller venues. Several Texas cities concerned about the possible legal challenges and costs should they pass ordinances banning abortions instead drafted ordinances stripping the municipal government of authority for enforcing the ban but giving such authority to ordinary citizens.
The citizen-enforcer tactic has since spread elsewhere.
A Tennessee law enacted this year allows parents and students to sue public schools and collect damages for psychological, emotional, or physical harm if a school allows students to use the same bathroom or changing room as people of the opposite sex. A Florida statute now allows parents and students to sue schools for damages if the school permits transgender girls to compete in girls’ sports.
And unsurprisingly, more states are modeling, or thinking about modeling, anti-abortion laws after Texas.
These first examples of citizen-enforcer laws are on the conservative side of the “culture-war” divide. But California is demonstrating that states and groups on the other side of the spectrum might use them too.