By Cathy Zhang
The United States Supreme Court’s refusal to block Texas’s SB 8 abortion restriction earlier this month foreshadowed an uncertain future for abortion jurisprudence and put reproductive rights at the center of national discourse.
But abortion is not the only right at stake: the novel enforcement mechanism behind SB 8 may soon appear in a wide range of legislation, making it more difficult to challenge unconstitutional laws.
The New Enforcement Mechanism
Texas’s SB 8 bans abortions after approximately six weeks of pregnancy and is enforced solely by private citizens. In other words, it allows any private individual to sue providers and anyone who helps a patient obtain an abortion after that period.
Private enforcement of the law is not a new legal invention. In fact, the federal regulatory system relies in large part on private parties to enforce laws and regulations, from the Civil Rights Act, to consumer protection laws, to labor standards.
Much of the desegregation of hospitals in the South was achieved through the enforcement efforts of private civil rights activists and volunteers throughout the 1960s. Government agencies may not have the capacity to detect and pursue every violation of the law on their own; the help of private actors reporting and suing violators makes enforcement possible.
What is legally unique about SB 8 is that private citizens are the only enforcers: state actors, including the police and government prosecutors, are prohibited from enforcing the law. While such actors would typically be responsible for law enforcement, SB 8 deliberately excludes them in an attempt to preempt challenges to the law before it takes effect.
Normally, an individual could sue a state actor tasked with enforcing an unconstitutional law before it goes into effect, blocking the law in court before it causes any harm. But, the idea behind SB 8 is that if no state officials are enforcing the law, then there’s no one to sue for violating your rights. The law will then go into effect, at which point private citizens, who are subject to fewer judicial restraints, will enforce it.
Additional features of SB 8 that make it particularly disfavorable to abortion providers and other potential defendants include the fact that private citizens who successfully sue receive a $10,000 bounty and coverage of attorney’s fees, while defendants cannot recover legal costs, even if the lawsuit against them fails. Private citizens also get to choose where to sue providers, forcing defendants to travel to courts that may be across the state in areas with politically unfavorable juries. Under these circumstances, abortion providers only stand to lose, regardless of whether they have violated the law.
When SB 8 first made national headlines in July, commenters were quick to raise the question: If Texas can create private enforcement against abortions, what’s stopping blue states from using the same mechanism to enforce firearm regulations?
Indeed, the architect of the SB 8 enforcement mechanism himself, Jonathan F. Mitchell, wrote in a 2018 article in the Virginia Law Review that the same mechanisms present in SB 8 could be applied in “a campaign-finance law, a gun-control measure, a civil-rights act, a child-labor law in the 1920s, an abortion regulation, a prohibition on virtual child pornography, or a state-law prohibition on sanctuary cities.”
Legal scholars Jon Michaels and David Noll warn that although private enforcement could theoretically be used in left-leaning policies like COVID-19 safety protocols and firearm legislation, the current judiciary won’t favor such laws. Privately enforced voter suppression and policing of undocumented individuals, on the other hand, are far more likely outcomes.
Furthermore, if there is no way to preemptively challenge a law that lacks state enforcement, there will be inevitable chilling effects, even if the law is blatantly unconstitutional and later struck down. Planned Parenthood and Whole Woman’s Health, two of the largest abortion providers in Texas, stopped providing proscribed abortions at their clinics across the state on September 1 in compliance with SB 8. Even if SB 8 is eventually deemed unconstitutional, an indefinite number of patients may be forced to seek care outside the state or carry their pregnancies to term in the meantime.
It is not hard to imagine a state passing similar laws to restrict other health services, such as gender-affirming care or needle exchange programs. In the abortion sphere, a restrictive local ordinance with an enforcement mechanism analogous to SB 8’s has already been introduced outside of Texas. How far this mechanism will ultimately reach, both geographically and across other rights, remains to be seen.