TLDRUpFront: The private enforcement mechanism of Texas’s anti-abortion law removes legal safeguards designed to protect both defendants and courts from bad actors. In analogy, Republicans turned off the anti-virus software because it made using the dark web harder. In doing so they’ve exposed themselves, and the Texas court system, to exploits and asymmetric monkeywrenching they believed, would only target abortion.
Republicans were so preoccupied with whether they could, they didn’t stop to think if they should.
There are many reasons to dislike the recent Texas anti-abortion law. Not the least being that No State has a Right to Tyranny. Arguments abound around the law on ethical, scientific, and first-principle grounds. But the “private enforcement” mechanism at the heart of the law is receiving less attention. And it is in the private enforcement mechanism that is not only the law’s greatest “strength” in achieving Republican intent but also its greatest “weakness.”
In gaming terms, Republican lawmakers min-maxed statutory language in the bill to ensure that bad and faithless actors would face neither impediment nor risk, in suing those who provide or facilitate abortion. After all, the entire purpose of the bill is to unleash bad actors against abortion providers or facilitators in order to suppress the practice in the state. The problem is that over-optimizing any mechanism often results in fragility. And the fragility in the Texas anti-abortion law is that anyone can exploit this law to sue anyone else. The very safeguards that traditionally prevent legal vigilantism were removed, by design. But the designers didn’t seem to realize the weapon they had created could be turned on themselves, or the courts of Texas.
This wouldn’t be as much of a problem if the Supreme Court had provided temporary relief from the law while it was being adjudicated. But Republican lawmakers designed the private enforcement to bypass injunctive relief that typically enjoins States from carrying outlaws. As argued in the preliminary hearings, the States themselves are not enforcing this law, but private actors. Putting aside arguments on that ruling for another day, the failure to provide injunctive relief declares open season for any anti-abortion activist to target abortion providers and those who facilitate services, but vulnerable populations, communities of color, the poor, or anyone that someone may have a grudge against. But that open-season cuts both ways. And there is little preventing the architects or supporters of this law from being targeted under its private enforcement mechanism.
How Texas Republicans Turned off Anti-Virus Software and Exposed themselves, and the Courts to Hacking
Before getting into some hypothetical ways this law might be exploited, it’s important to catalog the safeguards removed by the law.
- Claimants no longer need to have standing to file a suit under the law.(Sec 171.208 (a)) This provision removes the safeguard that a claimant must prove standing, that they have suffered individual harm from the defendant and the harm can be redressed. Standing, in both US and common law, prevents frivolous civil lawsuits filed to express displeasure over the acts of someone else. Texas now grants standing by law to anyone who qualifies under its provision.
- Any person can qualify as a claimant who isn’t a local/state officer or public employee.(Sec 171.208(a)) This provision means that everyone qualifies for standing other than government officers or public employees. It’s not even clear if the language is limited to Texas residents.
- Claimants can pick the venue to sue in regardless of distance or burden for the defendant. (Sec 171.210) The law provides four potential venues for any suit: A) The county where the claim of violation originates. B) The county of residence of one of the defendants. C) The county of principal office for non-resident defendants. Or D) The county of residence of the claimant. The trick here is the venue is determined based on the initial action of the claimant. And once a venue is determined, it cannot be changed without the written consent of all parties, including the claimants. This appears to be designed to not only create an undue burden on residents (Texas is a big state) but allow non-residents to be drug into Texas courts.
- The suit can be filed against any conducting an abortion or facilitating through indirect means an abortion, or might do so in the future; even if they don’t realize it. (Sec 171.208 (a1-3)) This provision takes the opening created in the previous two provisions and drives a truck through it. Vaguely and expansively worded to cast as broad a net as possible for targets of private enforcement it does just that. The language is so broad one could argue that the Governor of Texas is facilitating abortion through some convoluted cookie-cutter logic. Normally cookie-cutter filings would fall apart because an affirmative burden of proof is put on the claimant. Claimants must provide ample evidence the defendant has done the deed, and if they can’t, the defendant needs to do nothing else than point out the claimant has failed to make their case. But wait…
- The affirmative burden of proof is on the defendant, not the claimant. (Sec 171.208 (f-1)) The law requires the defendant to affirmatively prove they did not violate the statute and sets the burden of proof at a preponderance of evidence. So a suit filed even on initially flimsy evidence shifts the burden to the defendant. Given the broad and expansive wording of what acts violate the law, the defendant now must prove the negative, a known rhetorical fallacy. They must demonstrate to a preponderance of the evidence that they didn’t directly or indirectly, even without knowing about it, now or in the future, facilitate an abortion. Normally, the defendant prevailing, in this case, could claim attorneys’ costs, providing a suppressant on frivolous filings. But wait some more…
- Defendants, even if they prevail, can’t be awarded attorney’s costs against claimants. (Sec 171.208(j)) The law prohibits the standard practice of defendants arguing that frivolous or harassing lawsuits as a means to both make themselves whole and discourage further frivolous or harassing lawsuits. Because…
- Defendants can be repeatedly sued, over and over and over again. (SEC 171.208(c)) Double jeopardy only exists in criminal cases. The only protection a defendant has against repeated suits is that they can’t be made to pay statutory damages if they have already paid them once. This is where the risk for public figures, like elected Republicans, increases. Because if they are sued repeatedly they can’t rely on state offices or resources to help defend them because…
- No local or state official can intervene in any proceeding arising from these actions. (SEC 171.208(i)) Part of the end-run around SCOTUS was ensuring zero governmental interaction in the private enforcement mechanism. But this also leaves elected officials, who can often rely on state-appointed and paid for legal counsel, especially vulnerable to the law. State attorneys can file amicus briefs, but they can’t participate or directly aid in the defense.
- Every single provision of private enforcement is individually severable from every other provision. (SEC 171.212) Determined to not only turn off anti-virus protection but keep it off, Republicans went to excruciating length to ensure that every section is individually severable. If a future court rules narrowly and invalidates just one provision, the others remain.
If the above sounds like a Constitutional nightmare in the making, it is.
Designed to Target the Vulnerable the Law Encodes Exploits to Target the Invulnerable
Obviously, the law was designed to target the most vulnerable in society. By shifting enforcement from criminal prosecution to private civil enforcement, the law bypasses even the ostensible safeguards against arbitrary and selective prosecution based on a person’s race, socioeconomic status, gender identity, sexual orientation, creed. We know that even with these safeguards prosecuting officers are often selective and arbitrary in their enforcement. But with private action? Busybody HOA types will have a field day using this law to enforce their prejudicial biases. A Black woman who isn’t the “right type for the neighborhood” could be repeatedly targeted solely because she’s known to drive for Uber. And on each case, the claimants don’t have to prove that she facilitated an abortion on one of her drives. The affirmative burden of proof falls on her to prove she didn’t. The law appears to be intended to benefit organized groups acting as claimants to file suits in as wide a swath as possible.
But this design also creates its vulnerability. Here are a few hypothetical examples of how this law might be used to monkeywrench elected Republican officers of the courts of the State of Texas. The hypotheticals are provided as educational material, and not legal advice, in the hope that the vulnerabilities exposed by the private enforcement mechanism are closed. The Supreme Court will have its shot at this soon enough. But the Texas State government may be moved to take action to repeal the law itself, once it understands the vulnerabilities it has created.
- File multiple claims, in multiple venues, against every elected Republican officer in the State. Given how broad the definition of violation is, and that the burden of proof lies with the defendant, and that elected officials cannot rely on state support; Republicans could be particularly vulnerable to blowback in a wave of filings. The suits might be dismissed eventually in a civil proceeding – but given the affirmative defense language requirement, it would probably not be as early in the case as might normally happen. Since these suits could be filed in venues at maximum distance and difficulty for the Republican defendant, with Texas being a pretty big state, and Republicans couldn’t rely on state officers or support in defending them, this could create a legal mess.
- File multiple claims, in multiple venues, against anti-abortion activists in the State. What cooks the goose also cooks the gander. Under the broadness of the law and the requirement of the defendant to mount an affirmative defense, anti-abortion activists could be targeted under the assertion that by supporting this act they are encouraging abortion-seekers to flee the state seeking abortions elsewhere. Like the cases above, they’d eventually likely be dismissed, but the cost and burden of legal responses and proceedings could bankrupt these anti-abortion efforts. That appears to be the intent of the law anyways. It’s just not well written as to limit who it targets.
- File multiple claims, in multiple venues, against elected Republican officials and anti-abortion activists nationwide. Really the sky is the limit as far as the hypotheticals go. The law seems designed to allow non-resident parties to be brought into State to face punitive lawsuits. Filing claims against former President Trump or Senator McConnell may not result in a finding against them. The other States still have laws and civil proceedings rules so the venue and applicable law would be a fight. But at the least, this could probably produce some swank court-stamped letterhead suitable for mounting or framing.
- Friends, colleagues, and allies could file suit against each other. Unlike suits against Republican elected officials or anti-abortion activists, proceedings between two friendly parties would proceed as long as those two parties agreed to it. This would tie up court resources, for longer, especially if numerous pleadings and motions were made. Ultimately, being an action among friends, an out-of-court settlement could be reached. And out-of-court settlements frequently have binding non-disclosure agreements prohibiting the release of how the case was settled.
- Swamp a targeted county to bring its civil proceedings to a halt. Whether by design or byproduct, the hypothetical scenarios listed above and others could serve to swamp any county’s court system where claims by anti-abortionists are being filed in number. This isn’t without consequence – a court system that cannot function under a proliferation of lawsuits is a court system that also can’t function for legitimate criminal and civil purposes.
An Attack on One is an Attack on All
Obviously, these are hypotheticals, provided for educational and entertainment purposes. This should not be construed as legal advice. Attornies, bound by professional codes of ethics would probably not wish to engage in the above acts. (They may provide templates, however!)
But although the private enforcement mechanism of Texas’s law is aimed at abortion, it should be obvious how this kind of legislative min/maxing can be used to attack any of a number of Constitutional liberties. Search and replace abortion in the text with “private gun purchase”, and the risk to the Second Amendment, by way of example becomes clear. It’s not the government harassing gun owners, shooting ranges, firearm manufacturers; it’s just private concerned citizens filing civil suits. The law is bad, on moral, ethical, scientific, and first principle grounds as it relates to abortion. But the private enforcement mechanism is equally and independently bad regardless of one’s view on abortion itself. It envisions State-sponsored tyranny through private legal-vigilantism on whatever hot-button topic floats the boat of the current governing majority in power.
That’s not how our Republic works. And the Supreme Court dropped the ball in not providing a preliminary injunction. But by doing so they’ve given a rare opportunity for the full consequences of badly constructed laws like this to be felt in full force; not on their intended targets, but on those who view the proper function of the State to inflict misery on those they disagree with and the vulnerable.