By Alexi Pfeffer-Gillett. Full Text.
On September 1, 2021, the Supreme Court refused to block Texas Senate Bill 8 from going into effect, despite the bill overtly banning constitutionally protected access to abortions before fetal viability. The Court reasoned that because the statute only allowed for private plaintiffs—and not government officials—to bring civil lawsuits to enforce the ban, abortion providers challenging the law had failed to establish the requisite state constitutional deprivation, at least at the time. The court, in a 5-4 decision, did allow that it would consider renewed challenges to the law if “procedurally proper.” The Supreme Court’s decision resulted in abortions in the state of Texas all but ending. Texas and other states are increasingly relying on private enforcement schemes to accomplish what would be, at best, legally dubious enforcement if prosecuted by state officials.
This Article considers the new frontier of private enforcement laws, like Texas’s, that are expressly designed to evade court constitutional review by delegating enforcement to private plaintiffs rather than state officials. I argue that, in regard to both the Texas abortion ban and any similar private enforcement laws in the future, the strongest way to present a “procedurally proper” constitutional challenge is to first disobey the law. As I demonstrate by taking Texas’s enforcement scheme to its logical conclusion, civil disobedience will ultimately force state courts and even police to step in and enforce the law, because even if private parties are empowered to bring claims for now-illegal abortions, the state inevitably will be forced to step in to administer and enforce the law. If and when courts and police begin directly limiting access to constitutionally protected rights, like the right to abortion in Texas, the Supreme Court will be forced to reckon with significant precedent suggesting that such state involvement amounts to a violation of the Fourteenth Amendment. In Texas and beyond, challengers should not wait for legal challenges to work their way through the courts, while in the interim allowing the private enforcement laws to have their intended chilling effect. They should instead call the state’s “private enforcement” bluff by forcing it to stand behind the unconstitutional deprivation.