Oh Texas…

In the years before 2016, when I needed an  example of a really stupid policy for my graduate Law and Public Affairs classes, I always could count on Texas. (Of course, once Trump was elected, bad federal policies were so plentiful I didn’t need to look to the states for examples.)

As the Biden Administration moves to reverse many of the damaging, corrupt decisions of its predecessor, Texas legislation is once again filling the “what the shit?” gap. Some bills are just “Texas-sized” versions of current GOP efforts to suppress the vote, while others–like the recent effort to turn citizens into agents of the state authorized to report and punish abortion– are something else altogether.

As Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck recently wrote in the New York Times, Texas’ version of anti-abortion legislation is “especially worrisome.”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

The op-ed noted a crucial difference between this legislation and the private attorney general laws that in many states allow people to help enforce certain laws. As they point out, in those situations, citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

The reason for that difficulty is that, when the state itself is not directly involved in enforcing a law, none of the state’s executive officers are proper defendants to a lawsuit. (What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.)

That said, I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive covenants in property deeds, in which the Court found that private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

As the essay concludes, success in this effort by the state of Texas would set “an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”

This year, the Supreme Court is scheduled to hear what’s likely to be its most important abortion case since 1992, when it considers Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. But the legal dispute that began in Texas last week is, in our view, the far more important one. Not only is the Texas ban a frontal assault on Roe v. Wade; it’s an assault on our legal system and on the idea that law enforcement is up to the government, not our neighbors.

Texas has often tried to secede from the Union. Failing that, it’s attacking the legal framework that defines us as a union.


  1. So will a miscarriage by a woman be suspect? Would she be charged with murder now too? This is getting ridiculous.

  2. After having lived in Texas for 15 years, I became somewhat jaded as to the political clown show that is the Republican party there. I somehow lived through four terms of the fundamentally corrupt Rick Perry. Before that there was the village idiot, George W. Bush. You see where this is going.

    Gregg Abbott was the AG for Perry and he fostered this kind of NAZI/STASI/KGB sort of “law” all the time. Remember that huge explosion in the small town that destroyed buildings and killed a bunch of people? Abbott’s response? He produced an edict that allowed companies like the one that blew up and half their town away to not be required to tell the neighbors what they were doing inside or what substances they were storing.

    The Republicans got hold of the education system there too. The textbook and curriculum disasters I experienced first-hand. Texas Republican parents were hostile to teachers from day #1. Talk about cancel culture… Texas Republicans tried to suppress, among other things, teaching history that EXCLUDED even the mention of slavery, Big Bang Theory and, of course, the all-time favorite, EVOLUTION.

    Everything Republicans touched there was detrimental to the people who slavishly (sorry for the irony) followed and elected the worst Republicans in the nation… outside of Alabama and Mississippi, of course. If you want to get an in-depth, tragic-humor dose, read Molly Ivins’ books. Yes, they’re outdated, but you’ll understand why Texas is governed the way it is. Texas Republicans keep trying to prove that they invented the concept of STUPID.

  3. And Indiana duck steps behind Texas
    Good thing Pelosi threw Banks out
    Does Indiana Farm Bureau Inc still support Banks?

  4. Professor-as you and I have exchanged over the past 4.5 years, we are living during a very dangerous time.

  5. Hard to believe that Texas gave us Ann Richardson and Molly Ivans. I’ll miss Galveston, but I think its time to give the extremists and lunatics Texas and a couple other states and let them secede. And this time let’s the rest of us not make such a fuss over it.

  6. I hope the rest of this country will come to their senses and create climate change policies that will shut down those uber wealthy republican oil/fossil fuel magnates. Removing their financial power will help both Texas citizens and the rest of us.
    We should all realize by now that the main purpose Rs are pushing anti-abortion policy to the forefront is to keep the tiny minds of crazy evangelicals and other village idiots off of demanding legislation that would benefit citizens, such as expanding access to healthcare, making it easier to vote, comprehensive pollution control, etc, etc.
    The wealthy texans are willing to completely ignore the well being of their fellow citizens in order to keep their wealth and power because it extends outside of TX to the rest of this country.

  7. Is going to court the only remedy the Texas law gives to anti abortion enforcers, or is it broad enough to encourage the use of force to prevent an abortion? I haven’t read the bill and I really don’t want to sift through any language written by or for Texas Republicans.

  8. I moved to Texas in 1970 from Cleveland, Ohio. When I first got there, people would refuse me service because of the way I talked and looked. Then Willie Nelson started to become very popular and suddenly it was cool to have long hair and smoke pot. Texas even had a Democratic Senator. The tension between the conservatives and the liberals in Texas is long going ad will continue. I don’t think I would single out Texas Republicans as the Republicans everywhere in our country have crazy and undemocratic ideas. A couple more years of Trump and they will go the way of the Whigs.

  9. This new Texas S.B. 8 with it’s Vigilante smell to it, is up there with stand your ground and citizen’s arrest. If a woman has an abortion outside of Texas past the 6 weeks can she be subject to citizen’s arrest after she returns to Texas????

  10. Louis,

    I moved to San Diego in 1968 from Cleveland. Different kettle of fish, that’s for sure. I ended up working for Texas Instruments in Temple and was introduced to that special kind of self-imposed greatness from Texans.

    Yes, Republicans everywhere are trying their worst to destroy the Constitution for reasons known only to their tiny, depraved minds. But Texas Republicans are the worst by far due to their idiotic attachment to “independence”. Look who they elect to office at all levels. These damned fools couldn’t manage a keg party inside a brewery.

    Oh, and it’s Molly Ivins. Her writing was my inspiration to write op-eds and publish my non-fiction political books.

  11. Patrick Sullivan “…let them secede.”

    It’s difficult to understand why TX electrical utility customers tolerate TX’s secession from the national power grid.

    The emergency connection grid wires to CA were actually cut, making it certain that TX citizens will die when the the next TX power emergency comes, and though CA may have surplus power, TX cannot tap into it.

    Only foresighted El Paso remained connected to the Mexico grid!

  12. Nancy makes a good point. Much of such legislation such as that proposed and/or passed by Texas and other Republican legislatures is designed to distract us from their refusal to consider legislating on the really prominent issues of the day which go unaddressed, and I also parenthetically note here that I am opposed to the secession of Texas from the Union as some have proposed – and for good reason. I think Texas is on the verge of turning blue, and if and when that happens we can send the barbarians back to their caves as reason returns to Austin.

    So now Texas via the majesty of law has decided that neighbors can squeal on one another if an abortion is in the offing and escape retribution due to the terms of such statute and the inapplicability of the Constitution? With a 6-3 advantage on the Supreme Court, I fear the outcome since this would be a matter of first impression with scanty research potential.

    So, for instance, if neighbors (who don’t get along because of a boundary dispute) can squeal on their neighbors on suspicion of ending a pregnancy and be protected from retribution, what kind of society can one envision? Exactly the kind of society Trump and his haters want, a chaotic hateful grouping of people sans common purpose and an easy mark for authoritarian control.

    Texas with its phony posturing via the majesty of law is serving as a test case for the courts not only with this anti-abortion attempt to skirt constitutional control but with passage of such “law” is also serving to muddy the water as a test case for dictatorship. Why? Because if the framework they have invented works for abortion, what’s to keep the application of such framework to any and all other neighborly squealing, from speeding to misrepresentation to insurors – and beyond? Can you spell chaos?

  13. This law is simply chilling and frightens me. Really? Texas wants to become like Russia under the KGB or Germany under the Nazi’s. This will not only harm women seeking an abortion but those who are helping them get to a clinic out of the state of Texas. Someone will have to create a very hidden, skilled underground and hope they don’t get discovered. This sort of legislation is also like what the Taliban do to women and the citizens of Afghanistan. If they choose to restrict all abortion even when a women is raped or a girl molested, even when the woman’s life is seriously endangered or the fetus is not viable, they will rise to the ranks of the most mysogynist men.

    If Texas really wanted to reduce abortion rates, they should ensure all women( and yes, men) have easy access to birth control. And that women have high quality prenatal care close to where they live. For me, this smacks also of racism since African-American women have higher rates of infant mortality and of women dying while giving birth.

    As bad as Indiana can be at times, I am glad I don’t reside in Texas.

    I would encourage all the women who can to move to another state. One that is more progressive. That will Texas will have a terrible brain drain, and their population will dwindle.

    Right now, the women of Texas need to take to the streets. Sadly, some of them, maybe many of them are so codependent, so religously blind, they will support this fascist legislation.

  14. Texas Republicans are totally and completely responsible for the criminal negligence they practice on the good people there. They have NO intention of governing for the people… at least those not spending millions on campaign donations. Abbott is a puppet of big real estate, big oil and big insurance there. He really isn’t all that smart.

    The power grid fiasco was STRICTLY for the benefit of big oil and gas. They don’t want to pay for their part in a grid that safeguards against exactly what happened last winter. They buy the Republicans to do their bidding and here we are. People dying is not a consideration to these craven wretches. It’s only money and power, power and money.

    The 49% of Texans who are good, decent and truly civic minded must take over Texas politics soon while they still have the means to do so. Secession has been around Texas since 1859. The economic disaster that would befall that place if they did would turn Texas into a third-world, despotic country overnight.

    Yes, the secessionists ARE that stupid… just as they were in 1860.

  15. In the medical field( I’m a retired nurse) there are Hippa Laws that protect the privacy of patients. When those laws were initiated I got the impression they were across all the U.S. It seems SB8 directly would violate those laws?

  16. AgingLGirl — In El Salvador, you have a miscarriage or stillbirth, you can be jailed… of course, if you have connections you aren’t — if you don’t the doctors & nurses turn you in for fear of getting accused of providing you with an abortion.

    Texas is a terrible place!

  17. Cathy,

    HIPAA only relates to the medical care systems and insurers. You don’t need to have a nurse, doctor, or even a clerk from your medical care provider to tell people you’re pregnant for people to know that you are. It is indeed a federal law, but not necessarily impactful in this situation.

  18. Put a small pillow under your clothes and flush out the weird neighbors.
    Then take a small trip out of town and come back sans bump.
    How is the accusation proved? Forced sonogram?

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