Observe and Report

The issue of abortion became central in the United States again on September 1, when a law banning the procedure after six weeks of pregnancy came into effect in the state of Texas. Five justices on the U.S. Supreme Court voted not to block the law, known as SB8, though they didn’t rule on its constitutionality. In addition to effectively outlawing nearly all abortions, the new law includes a new and unusual enforcement mechanism. Texas officials will not police the law directly but instead leave this to private citizens. SB8 allows any U.S. citizen to bring a civil lawsuit against a person or organization performing or providing support to a woman who has an abortion after six weeks. This private enforcement offers citizens a bounty of $10,000 for a successful lawsuit, as well as reimbursement for legal costs. After the law was passed, legislators in Republican-dominated states such as South Dakota, Florida, and Arkansas declared their intent to draft similar legislation. Laws in Tennessee and Florida already empower students to sue schools that let transgender classmates play sports or use bathrooms corresponding to their gender identity, and recent bills in other Republican-led states would enable parents to sue schools that teach critical race theory. What will it mean to leave the enforcement of the law to citizens in this way?

Amanda Hollis-Brusky, the chair of the politics department at Pomona College, has written two books on conservative projects to transform U.S. laws. As she sees it, deputizing all Americans to enforce the law would ultimately dismantle the rule of law in their country. If courts let these bounty-hunter provisions stand, Hollis-Brusky says, it would create a dystopia of individual states choosing which rights to protect and which to assail with vigilante lawsuits, gravely undermining the Constitution. Hollis-Brusky expects the Supreme Court to strike down SB8, partly because of the section granting anyone the standing to sue for civil damages. In her view, even if the law eventually falls, its effect in the meantime is effectively to end abortion in Texas.

Michael Bluhm: Where did the enforcement mechanism in SB8 come from?

Amanda Hollis-Brusky: This is not an invention out of whole cloth. Texas has ripped from the playbook of civil-rights legislation but, to some extent, perverted it.

The Americans with Disabilities Act was a landmark piece of legislation that created obligations for businesses, workplaces, and schools to make their facilities accessible to folks with disabilities. But instead of creating a federal bureaucracy and empowering some agency to make sure that businesses and schools were complying, the ADA empowered citizens to bring lawsuits to enforce the rights in the act. Whoever was bringing the lawsuit had to show that they had experienced harm—they had standing to sue, because they had experienced harm due to this business’s or school’s noncompliance with the act.

In the Texas case, what is novel and, to some extent, a perversion of that provision is that anyone—not just Texas citizens, anyone in the universe—is empowered to bring a lawsuit against someone for exercising their constitutionally guaranteed rights. It’s a stroke of warped genius to empower private citizens to prevent anyone from aiding, abetting, helping, and giving information to a woman about how to access abortion after six weeks.

There is a history of the right borrowing from the playbook of the left. But this is very different, because it creates financial incentives for people who are not in any way affected or harmed by another woman’s choice to control her own body. It creates an environment where abortion providers, physicians, even educators are liable to be sued just for talking about abortion.

Bluhm: Texas legislators chose to use private enforcement in SB8 because they believed that it would survive judicial scrutiny. Why does the Supreme Court allow provisions for private civil lawsuits to enforce the law?

Hollis-Brusky: This is an accountability mechanism. Stripped of SB8’s more or less perverse incentives that provide for citizens to engage in bounty hunting, the idea that private citizens should be able to hold institutions accountable to a federal mandate is an alternative form of enforcement when the government lacks the capacity, ability, or desire to enforce.