Tuesday, September 07, 2021

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.

I explain in a new piece at The Hill, here.

[1] The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1002 (2018).  

Older Posts
Newer Posts