Analysis: Texas ducks the federal courts, inspiring copycats

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Texas’ government has become a laboratory for bad ideas.

The state’s new restrictions on abortions — as of this year, the procedure isn’t allowed after initial signs of cardiac activity, usually at about six weeks into a pregnancy — came packaged with a “bounty hunter” enforcement provision.

Several other states are watching the abortion restrictions. The Texas statute and another from Mississippi are being tested in the highest courts and pose a serious challenge to the half-century-old Roe v. Wade decision, which made abortion a constitutionally protected right.

But it’s the Texas law’s other provision — the part that delegates enforcement to citizen lawsuits — that has inspired politicians in other states who hope to challenge their least favorite constitutional rights.

Who could have expected this from the people who made Texas a beacon of tort reform over the last three decades?

The Texas law isn’t enforced by state or local officials. Instead, it allows private citizens to sue anyone they think helped someone obtain an abortion. The idea is to protect the government itself from legal challenges. The law also says those citizens can collect $10,000 or more if their lawsuits are successful, a feature that led U.S. Supreme Court Justice Sonia Sotomayor to call them “bounty hunters.”

She was on the losing side when the high court ruled to leave the Texas law in place while challenges proceed. In a dissent, she was scornful of the state’s approach.

“The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand,” Sotomayor wrote. “The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.”

She picked up an argument made by opponents of the new law’s enforcement scheme, saying it opens a loophole for any state trying to get around that pesky U.S. Constitution.

“Worse, by foreclosing suit against state-court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” she wrote.

Think of that as recognition of the results from the laboratory of Texas government.

California was watching.

“If states can shield their laws from review by federal courts, then CA will use that authority to help protect lives,” Gov. Gavin Newsom tweeted. “We will work to create the ability for private citizens to sue anyone who manufactures, distributes, or sells an assault weapon or ghost gun kit or parts in CA.”

The Texas Tribune’s Andrew Zhang rounded up some of the copycats for The Blast, a Tribune newsletter. New York is looking at that California idea, according to Attorney General Tish James. Florida Gov. Ron DeSantis has a version that would allow people to sue school districts that teach critical race theory. A gubernatorial candidate in Oregon, former New York Times columnist Nick Kristoff, suggested it could be used to ban the use of coal as fuel in that state.

The Texas law isn’t out of court yet. The Supremes could still outlaw the vigilante lawsuit idea — even if they leave the rest of the Texas abortion law intact.

In the meantime, that provision has been successful in its mission of shielding the strict new abortion limits from judicial review. The challenges are still in court, but the abortion law remains in effect while the lawsuits simmer.

That’s a win for the lawyers who cooked it up, and a signal to other states looking to limit access to abortion — or anything else constitutionally protected, whether explicitly or by previous court rulings.

It’s survived so far in the Texas laboratory. Maybe it will work everywhere.

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