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The Supreme Court's Texas abortion decision is a threat to constitutional rights (all of them)
Andrew Koppelman
Abortion opponents are jubilant
about the Supreme Court’s recent refusal
to block a Texas law banning abortion after six weeks. The law was carefully crafted to evade
judicial review by empowering private parties, not the state, to enforce
it. The law accomplished what its
proponents hoped. As soon as it went
into effect, most abortions in Texas stopped.
But the full reach of the law hasn’t been understood. This decision endangers all constitutional rights, not just abortion.
When legislatures try to violate constitutional rights, courts
routinely issue injunctions forbidding officials from enforcing those
laws.If, say, a state made it a crime
to praise Antonin Scalia, a court would quickly block it as a flagrant
violation of First Amendment free speech.But the Texas law cleverly privatizes enforcement.It allows any private citizen to sue anyone
who “aids or abets” an abortion after six weeks. If a plaintiff prevails, they win at least
$10,000 per abortion plus legal costs.Defendants who win must still pay for their own lawyers.Plaintiffs can sue anywhere in the state,
even hundreds of miles away from the defendant’s home or business.
The scheme was devised
by former Texas Solicitor General Jonathan Mitchell, who helped write the
statute.In a 2018
Virginia Law Review article, he wrote that “a
defendant has no entitlement to attorneys’ fees when he asserts his
constitutional rights defensively in a private enforcement action, and the need
to foot one’s own legal bills may induce statutory compliance even for those
who expect to prevail on their constitutional objections.”[1]Read that sentence carefully.It says that the threat of expensive
litigation could bully people into surrendering their constitutional rights – any of them.