Private Enforcement Laws Have Changed the Future of Americans

History was made last month when pro-life activists won their years long battle against Roe v. Wade, the U.S. Supreme Court case that affirmed that access to safe and legal abortion is a constitutional right. Ever since that initial ruling in 1973, pro-lifers have tirelessly protested and fought against the ruling to no avail, until recently, December 10th 2021. 

While many pro-lifers were out on the streets protesting, planted in front of abortion clinics and courthouses, Texas state’s deeply religious top appeals court lawyer, Jonathan Mitchell was in the office working to do what seemed to be the impossible. He was attempting to craft a bill that could abide by Roe v. Wade's ruling that state involvement in abortion regulation is unconstitutional while still placing a ban—despite the fact that the state government of Texas would be appointing the law. 

The bill that was soon passed into law, known to many as the ‘Texas abortion law’ makes it illegal to obtain an abortion after the embryo being carried surpasses 6 weeks in gestational age.** It offers a minimum of $10,000 dollars in damages and a refund of legal fees to any private citizen willing to report or sue those who aid, perform, or get the procedure. Whether the plaintiff has any relationship with the act is irrelevant. The law that was signed into action by Governor Greg Abbott of Texas manages to abide by the ruling of Roe vs Wade by introducing a new class of conflict—it leaves the enforcement of the law in the hands of the private citizens of the United States, not the Texas state government.

When the Supreme Court rules that a state’s involvement in various issues is unconstitutional, it creates a barrier that blocks countless laws from being passed, rights from being threatened, and issues from being addressed. So, when Jonathan Mitchell developed a law that managed to get past this ruling while still being deemed constitutional, it did not just influence Texas: it introduced a model for a law that is already starting to be used all over the United States.

Almost immediately after the Supreme Court released its decision allowing challenges to the law to continue leaving it in effect, California Governor Gavin Newsom released a statement sharing his anger and outrage over the abortion ban—but also shared​​ that he had plans to use the same strategy. According to Newsom, “if states can now shield their laws from review by the federal courts,” then that authority will be used in California to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon, ghost gun kit or parts in California. Newsom went on to offer foreshadowing to a potential future with private enforcement laws by comparing Texas’s use of the newfound authority in comparison to California's future use. He stated that California will use it to “save lives while Texas will use it to put women in harm's way.”  

Florida is also introducing the format of the Texas abortion law to its state. Five days after the Supreme Courts ruling was released, Governor Ron Desantis of Florida announced his usage of the format of the law through the “Stop WOKE Act” which is modeled off of the Texas abortion law. Under the bill, parents are granted a private right of action to sue school districts they believe are teaching critical race theory. The bill also takes aim at training in companies, allowing individuals the right to sue businesses if they are forced to learn critical race theory. Desantis introduces a new way of utilizing the format for the Texas abortion law by using it to place an emphasis on an already existing ban in Florida that was put in place several months ago. 

The Supreme Courts’ deeming of the Texas abortion laws format as constitutional has released a barrier that has blocked politicians all over the United States from passing legislation for years. And to many, the release of this barrier has the potential to pit private citizens against each other now more than ever. 

To many legal experts, giving private citizens the ability to achieve legal action on other Americans based on personal and political beliefs has the potential to further the already prevalent divide between Americans. To Supreme Court Justices Sotomayor and Roberts, a rise in the use of private enforcement laws also has the ability to decrease the legitimacy of the United States court systems. In a joint statement of dissent with Justice Roberts, Justice Sotomayor claims that the Texas State Legislature has deputized the state's citizens as “bounty hunters” by offering them cash prizes for prosecuting their neighbors' medical procedures.

Sotomayor goes on to state that the court's failure to stop the bill "rewards tactics designed to avoid judicial review." Justice Roberts added that “the ‘clear purpose and actual effect’ of the Texas law is ‘to nullify this Court’s rulings.’” To Roberts and Sotomayor, the law undermines the Constitution and the fundamental role of the Supreme Court and the court system as a whole. 

Several years ago, a future where private citizens were given the full responsibility of enforcing the law may have seemed unimaginable, but as we witness the rise of private enforcement laws as a result of an unprecedented victory for Texas’s pro life activists, our entire view on our future as Americans is going to experience changes. 

** The ten week mark is when the embryo is medically considered a fetus.

Eloise Gordon is a sophomore at West End Secondary School and a Next Gen Civic Fellow in New York City. Eloise is passionate about local politics and gun activism. She works with various organizations such as Seeds of Peace and for the Manhattan Borough President’s Office to push for change and spread awareness. In her free time, Eloise enjoys acting and writing.