Private Enforcement Mechanisms and You

Priscilla Smith

Three points about the Texas mess and one suggestion. 

First, of course we know that the Texas law SB8 is an attack on abortion jurisprudence.  But the Court already has the Dobbs case to mess with/eliminate the right to abortion. (Dobbs is the case being briefed in the Supreme Court now concerning a Mississippi law banning abortions after 15 weeks of pregnancy.). So why use this dubious procedural morass to stop abortion?  What they have here is an even quieter way than was anticipated to ban abortion without explicitly overruling Roe and getting the people all worked up.  Do they think people will just get acclimated to abortion being illegal/unavailable if we start with Texas?  They might be right about that?  Or will women storm the Court and demand change?

Second, everyone who cares more about other constitutional rights should remember that this also paves the way for states to evade doctrine, i.e., Ex Parte Young, that has ensured that individuals can vindicate their constitutionally guaranteed rights in federal court.  Any constitutionally guaranteed right. 

Third, delegating enforcement of a law that infringes constitutional rights to private enforcers is not just an attempt to insulate a patently unconstitutional law from federal judicial review prior to enforcement, as many have pointed out.  It’s an attempt to insulate a patently unconstitutional law from federal judicial review period.  

This brings me to my suggestion for today.  

Draft and enact a statute – maybe in CT but no, especially in DC -- that prohibits the expression of anti-choice views and anti-choice advocacy and delegates enforcement of that law to “any person.”  Statutory damages for violation of the statutory would be – let’s go big -- $100,000.  Anyone could then sue Americans United for Life and individuals (politicians) advocating for the overthrow of Roe.   

Or here’s another one. Prohibit entry to the bar to a group of people (you pick) and also prohibit anyone from aiding or abetting a member of that group who is trying to become a member of the Bar.  (See, e.g., Law Schools, Professors, the LSAT people, me – I’m a clinical professor). The law could even be applied retrospectively to members of this group who are members of the Bar.  Delegate enforcement of the law to another specific group of people).  Statutory damages for violation of the law again 100,000.  A form of reparations.

Let’s see how quickly things would change. I suspect the Court would rush to prevent such laws from taking effect. It would decide we need to have a mechanism for enforcement of federal constitutional rights in federal court and states can’t void this mechanism by playing these sorts of games.  Either our interpretation of the 11th amendment must change or the Ex Parte Young doctrine – already a ‘fiction’ after all – must be broadened.  Would they limit these mechanisms to the fancy First Amendment, cuz it’s the most important – it was first, foundation of democracy, etc., etc.  You be the Judge.