How to beat Texas’ anti-abortion law

Even though abortion is still a constitutional right, for now, the media give the impression Texas’ law against it is unassailable in the courts.

For example, The Hill noted (here) the law’s novel approach of “private enforcement has thrown up procedural obstacles to” legal challenges. Normally, a state law that  conflicts with a Supreme Court precedent such as Roe v. Wade would be struck down in federal courts as unconstitutional. This, in fact, happens all the time.

And the Texas law is plainly unconstitutional, its drafters know it is, and they made overt efforts to get around that. (Its unconstitutionality would change, of course, if the Supreme Court overturned Roe v. Wade, but that hasn’t happened yet; so for now, the law is unconstitutional.)

Certainly, delegating enforcement of a state law to private citizens in civil courts has “thrown up procedural obstacles.” An initial attempt to stay enforcement pending legal challenges was rebuffed by the Supreme Court, although at least one Texas state judge didn’t see a problem with doing that. Now, as Biden’s Department of Justice presses ahead with challenging the law in a federal district court, the judge also seems to be questioning the tactic.

“I guess my obvious question to you is if the state is so confident in the constitutionality of the limitations on women’s access to abortion, then why did you go to such great lengths to create this very unusual private cause of action rather than just simply doing it directly?” he asked the state lawyers.

Aside from all this procedural wrangling, I don’t see a conceptual obstacle to striking down this and similarly structured laws.

The argument really is pretty simple: This is still state action, and delegating enforcement to private citizens doesn’t change that, but simply makes them state agents. In practice, the state is deputizing them and cloaking them with state authority, to carry out enforcement of state policy on behalf of the state. Courts, therefore, should have no difficulty recognizing these “private” lawsuits as state actions, for that’s what they are.

Throughout American legal history, courts haven’t been so naive or simple-minded as to allow parties to avoid something by calling it something else. Green doesn’t become red by calling it “red.” These enforcement lawsuits were created by the state, under its legislative power, to achieve state aims. Calling them “private” doesn’t make them so.

It is to be hoped that judges presented with challenges to this and similar laws won’t beat around the bushes, but instead will say the obvious, which is that these “private” litigants are state agents exercising state authority and these lawsuits are state enforcement actions. And, unless and until Roe v. Wade is overturned, are unconstitutional because they interfere with individuals exercising their constitutional rights.

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  1. Mark Adams #

    It is possible that as there are cases Texas courts may well declare the law unconstitutional on Roe V. Wade or that the legislature was far too clever and it violates the Texas constitution in other ways. Maybe the Satanists will score a cool 10 grand and put up a statue in Austin. That would certainly get some Texans in a dander.

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