Texas abortion law

What Texas can teach other states

I’m a big fan of Texas. I spend a lot of time in Dallas every summer. I know many folks in Governor Abbott’s admin. I’m not a huge fan of him, but he has hired good people and his machine works.

One recent example is the Texas abortion law. Both the law itself and the litigation strategy have lessons for us.

The law

The Texas law, now in effect, prohibits abortion after a “fetal heartbeat” is detected, and essentially mandates that a doctor performing abortions in Texas attempt to detect a heartbeat before performing an abortion. The law refers back to objective medical practice, and does a good job of setting up a scheme that allows for a paper trail. The law has teeth.

The law does something I have long advocated, which is leveraging the trial bar! It does so by allowing ANY person (not just a woman who procured an abortion, or a father, or a citizen of Texas) to sue ANY abortionist who violates the law.

We are going to get a pro life ambulance chaser lobby now. If this law can last a year there will be either no abortion in Texas, or millionaire lawyers sucking the money out of Big Abortion and lobbying in Austin. It’s win-win.

Now, the law mentions nothing about criminal penalties, but the top of the law does note that Texas laws are still on the books. If all goes well, presumably they will initiate prosecution in an egregious case.

Right out the gate, we need to look for other areas where we can leverage private civil suits and the trial bar to “crowdsource” enforcement. Why would you do this? You would do this where:

(1) due to politics or internal state structure, criminal cases will not be brought. So, for example, Pennsylvania, which is purple or occasionally red, but where Philadelphia is deep blue. A cause of action allowing private enforcement and treble damages in gun cases (PA has preemption of local gun laws) could be useful. Right now, it is up to the aggrieved party to file a preemption case, but an upstate law firm could just start suing Philly without worrying about the administrative standing issues an individual might run into.

(2) due to lack of resources, a private actor can evade enforcement. So, for example, major private universities in sparsely populated areas can flood local prosecutors with routine DUI cases. Indiana passing a bill allowing private rights of action against universities that violate conscience protections, railroad students in sexual assault cases, or violate free speech could make sense. Similarly, situations where the problem is a lack of information resources or reporting— Texas abortion is this case, but it do also be something like a whistleblower law against media companies that recklessly doxx or report falsehoods. Let that insider at Fox or CNN Dallas sue his employer and present inside information about their malfeasance, and win $$$.

While at the federal level these citizen suits, private attorney general actions, can run up against the corporate SCOTUS on paper standing grounds (often in the FDCPA context under a case called Spokeo v. Robins) at the state level there is much more room for creativity.

I’ll just note that the argument against these types of law, setting aside abortion itself, is that the trial bar is “bad” and that corporations can’t handle this liability. This is bunk. The trial bar is a fact of life, a part of the battlefield environment. You either use it or your enemy uses it. Second, the liability argument is always overblown. I helped run the tort reform program at Heritage, and while we obviously don’t want frivolous claims, the whole right is overtaken by defense bar Chicken Littles who don’t believe that courts are equipped to develop procedure, and who don’t believe insurance exists. They give these unbelievable and unsupported claims estimating economic damage, rather than focusing on marginal Pareto optimal improvements. I would also add that if you focus on genuine bad actors that aren’t major right wing corporations (such as universities or media companies), you can keep these guys mollified.

One final theoretical and comparative note. The private attorney general action is a move towards a bottom-up Protestantization of the law, which has its own risks. Our Republican system historically has allowed regional judges and prosecutors complete autonomy to define the law and scope of enforcement, with the limiting factor implicit or explicit reference to well settle habits of Anglo pastoral life— the “role” of the courts. With Reconstruction and the Warren court, we have a woke elite that runs the courts, with a token libertarian opposition through the GOP / FedSoc, but which has no real interest in localism per se. Prosecution is entirely delegated to the whim of this class. In Russia / USSR and some other civil law countries, you had / have procurators who are agents of a specific and identifiable sovereign, with almost complete and roving authority over the form of cases brought.

The Texas abortion law, and cases like it, are analogous to Bitcoin, a fundamentally Protestant ideal, undirected and headless, but serving a function implicit in its form and in the body of people who avail themselves of it. I suspect the Texas courts will quickly work to rein in the law, because it encroaches at a deep level on their authority. Locals and lawyers in Texas should put public pressure on Texas courts to allow these cases to proceed to an up or down on the merits— did an abortionist do XY or Z? Courts will be strongly desirous of being able to toss out entire classes of allegation or evidence. “Word on the street is that Dr. Smith did this abortion” is a colorable claim that should enable discovery.