This is the second article in a series addressing civil tort liability as a potential remedy for outrageous anti-community behavior. To read the previous article, click here.

This year, the governors of Texas and California went to war in a tit-for-tat exchange of legislation bringing the hotly contested political issues of abortion rights and gun control into the realm of civil tort liability. In this series of articles, I analyze this exchange and provide an explanation of the core legal concepts at play.

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Act 1: Texas Bans Abortion through Tort Law

Texas Governor Greg Abbott has championed a 2021 law that would prevent all abortions while also immunizing the state government from facing challenges to its violations of the constitution. Before Dobbs v. Jackson Women’s Health Organization ended federal protection for abortion rights and stole the show, this Texas-sized encouragement to vigilantes to deprive persons of their constitutional rights was center stage.

The efforts to deprive women of health care, which includes abortion, were nothing new. What was unique about the Texas law was limiting abortion access through civil tort remedies. Texas delegated the enforcement of bullying people from exercising their right to abortion to unknowns in the population, knowing that there would be many persons willing to play the role of plaintiff against any participant in abortion.

The innovation in the Texan approach relates to the concept of “State Action” in enforcing civil law. This concept derives from the Fourteenth Amendment to the U.S. Constitution, which was adopted shortly after the Civil War and granted citizenship rights to formerly enslaved people. It also granted U.S. citizens the right to equal protection under the law.

The Fourteenth Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added].

While this important amendment protects the constitutional rights of citizens, it only protects them from constitutional violations by a “State” (meaning, in this case, a governmental body). It does not provide any protection from violations from private citizens.

Generally, when a state like Texas is sued because it has violated the United States Constitution, the suit is enabled by the 14th Amendment and what lawyers call the “incorporation doctrine.” Prior to the 1890s, the protections of the Bill of Rights in the U.S. Constitution were considered to apply only to the federal government. As a result of interpretations of the due process clause of the Fourteenth Amendment, the protections of most of the Bill of Rights against government actions became applicable to the states.

By not assigning the state itself as the enforcement mechanism for the lawsuits, Texas hoped to avoid being considered a party to the violation of the constitutional right to abortion. The United States Supreme Court in another highly politicized decision in Whole Women’s Health v Jackson declined to address the constitutionality of the Texas law at that time. But in the majority’s sinister fashion, it would not “stay” the effect of the Texas law while it was being reviewed by the court system.

Essentially the court placated its political base by accepting the unconstitutional statute’s existing enforcement potential. A more formal decision would come whenever the court majority felt like taking the shadow off what is now called its Shadow Docket of cases in which it directs results without the scrutiny of formal briefings and opinions.

In my next article, California strikes back with its own law bringing gun control into the realm of civil tort liability.

Header image: A 2015 protest against previous incursions by Texas’ legislature on the Texas State Capitol building in Austin (Photo Source: Eric Gray/ AP). 

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