Opinion | Texas’s Abortion Law Upends the Legal System

In the abstract, allowing citizens to help enforce the law is nothing new. Many states have so-called citizen suit or private attorney general provisions that allow people to help enforce a range of laws and rules governing consumer and environmental protection, government transparency and more. The federal government authorizes citizens […]

In the abstract, allowing citizens to help enforce the law is nothing new. Many states have so-called citizen suit or private attorney general provisions that allow people to help enforce a range of laws and rules governing consumer and environmental protection, government transparency and more. The federal government authorizes citizens to help bring certain fraud claims on behalf of the United States — and allows those citizens to share in any damages that the government receives. The critical point in both of those contexts is that citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

When a state passes an unconstitutional law, the typical way to challenge it is to seek an injunction against the state officer in charge of enforcing the law. But as the U.S. Court of Appeals for the Fifth Circuit — the federal appeals court covering cases from Louisiana, Mississippi and Texas — held in 2001, when the state is not directly involved in enforcing a state law, none of the state’s executive officers are proper defendants to such a lawsuit.

Nor could challengers sue citizens who might in the future try to enforce the abortion restrictions, since there’s no way to prove that those citizens, specifically, will do so. At first blush, then, this law ingeniously insulates itself from challenge, something that would hardly have been necessary if its proponents were more confident that the six-week abortion ban is itself constitutional. But that’s where last week’s lawsuit comes in.

In a wide-ranging 49-page complaint, an array of abortion providers and abortion rights groups in Texas have sued Texas state court judges, Texas state court clerks and an array of state health officials in challenging the new law. As the lawsuit notes, even if, under the law, state enforcement proceedings can be initiated only by citizens, those proceedings can’t actually accomplish anything without the participation of judges, clerks and health officials. Thus, although these potential defendants aren’t tasked with enforcing the law and bear no responsibility for its enactment, the law can’t be enforced without them.

Janelle B. Smith

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