Texas is the latest state to test the limits of federal abortion jurisprudence by passing the Texas Heartbeat Act, a law severely limiting abortions there. It is part of a trend — a Louisiana abortion law was struck down by the Supreme Court in 2019 and a Mississippi law to ban most abortions after 15 weeks of pregnancy is on the docket for next term in Dobbs v. Jackson Women’s Health Organization.
The Texas law would ban all abortions after the baby’s heartbeat can be detected (usually at about six weeks along) unless some medical emergency necessitates it. What makes this law different from those that came before it is its method of enforcement: Texas’s bill explicitly bans enforcement by government officials. Instead, the law “shall be enforced exclusively through … private civil actions.”
In place of the executive branch enforcing the law, as is typical, Texas authorizes “[a]ny person, other than an officer or employee of a state or local governmental entity in this state” to bring a civil action against anyone who performs an abortion or knowingly aids or abets the performance of one. There is also a provision barring “a person who impregnated the abortion patient through an act of rape, sexual assault, incest” from suing.
That is to say, almost anyone in Texas (other than a state employee or a rapist) can sue anyone else whom they believe performed an abortion or helped someone do so. Instead of professional prosecutors, this would outsource law enforcement to the public at large.
Why the convoluted enforcement mechanism? It is a bit of legal sleight-of-hand designed to avoid the usual ways federal courts stop states from restricting abortion.
Typically, a court that believed a new law violated federal law would enjoin state officials from enforcing it. Here, Texas says they have already done that. As Justice Samuel Alito noted in denying emergency relief, “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.” The plaintiffs in the application for injunctive relief failed to designate any person against whom the injunction should be directed, since it is no one’s job to enforce it.
This is clever — probably too clever to survive the final challenge that will come once someone does attempt to sue under this law. But for now, the law survives and will presumably result in civil cases in the near future. Once it does, the deck is stacked in favor of the plaintiffs in such a suit. A plaintiff who sues under this can win $10,000 plus his costs and attorney’s fees, while a defendant who wins may not recover such costs and fees.
Pro-life conservatives will be tempted to applaud. Indeed, the law’s drafters are aiming at a worthy, long-standing goal of stopping millions of unborn children from being killed. But for a law to be just, not only must the ends be virtuous, but so must the means.
Leftists often justify the use of unjust means by saying the end they aim at is so good that one should not quibble about how we get there. This is the kind of thinking that leads to all of the gulags, famines, and executions that characterize socialist systems. Conservatives know — or ought to know — that “good intentions” do not justify using any means possible to achieve them. The right being violated here is not the so-called right to abortion — a monstrous lie invented in Roe v. Wade — but the right to the due process of law.
Why do we have a nation of laws? Why is that so important to a liberal democracy? It is because, as Ludwig von Mises wrote, “liberalism was the first political movement that aimed at promoting the welfare of all, not that of special groups.” This seems obvious to us now because we live in a world shaped by this revolutionary view: that all people should be equal before the law. But it is a basic part of our concept of justice that the law should not pick winners.
The Texas law does that by making it completely without cost to one side to bring charges, but never without cost for the other, ensuring endless trials whether or not they are justified. Moreover, it creates a cause of action for people who have not been damaged or even affected by the abortion.
Certainly, in a moral sense, any crime — and especially one so awful as infanticide — damages an entire society. But in a legal sense, this cannot be the case. If the theory here is correct, anyone in the state should be able to sue whenever a crime is alleged. The courts would be overrun with amateur prosecutors looking to get paid because of wrongs that have not caused them any particularized harm.
All of this means that the Texas Heartbeat Act turns centuries of Anglo-American jurisprudence on its head. Leftists want to abolish the police, while these Texas conservatives would abolish prosecutors. Both are an invitation to mob rule.
Even Evil People Deserve a Fair Trial
That is a lot of high-flown theory in defense of literal baby-killers. But that is what a system of laws requires: that even those accused of the most hideous crimes deserve a fair trial. It is not just a matter of procedural fairness, although that really should be justification enough. This kind of legislation, if it would be held constitutional and legitimate, would lead to untold injustices unleashed by the progressive left in legislatures they control.
Consider a law in, say, California, that would do the same thing against anyone who hinders or obstructs someone from getting a legal abortion. If the state’s attorney general enforced this law, he might well abuse it. Indeed, California has a history of doing exactly that against pro-life activists.
But how much worse would it be if anyone could bring a civil suit against someone for this? How long would it take before every pro-life activist was embroiled in meritless lawsuits? Win or lose, they would be bankrupted by attorney bills. This is not law; it is legalized anarchy.
We should aim for laws that protect the most vulnerable members of our society, the unborn. And we should applaud Texas lawmakers for trying to ban abortions as much as possible. But if we destroy an entire justice system in the process, we will have made a society that can protect no one from anything. We would destroy a liberal, democratic system that remains, despite its flaws, the best hope of preserving freedom and justice for all.