What public enforcement of laws means for American democracy
In the wake of the Texas abortion ban, both the right and the left are putting forth legislation that includes a mechanism for public enforcement via civil lawsuit
Texas’ six-week abortion ban made national headlines last year not only because it effectively outlawed the procedure in the state but also because of its unusual enforcement mechanism: The law allows for civil suits to be brought against anyone involved in any aspect of an abortion.
Now a flurry of legislation using this same mechanism — but revolving around other hot-button topics including gun control and critical race theory — is on the way. And the bills are not coming only from conservative policymakers. They’re coming from the left as well.
Regardless of which side of the political spectrum the policy proposals come from, experts warn that laws relying on public enforcement through civil lawsuits pose a threat to American democracy.
“The whole point of a modern society is that we create the infrastructure to do the regulation so people don’t have to surveil one another,” said Jon D. Michaels, a law professor at the University of California, Los Angeles and the author of “Constitutional Coup: Privatization’s Threat to the American Republic.” “Part of the evolution of a modern society is for neighbor not to have to police neighbor because that rarely ends well. It usually ends with one party subordinating another.”
The result, Michaels added, is an “antagonistic model of democracy” that is not inclusive but, rather, hierarchical.
Those with means will be able to circumvent the laws, he explained, offering the Texas abortion ban as an example. A wealthy person can travel out of state to have the procedure — or, if their minor daughter is pregnant and wants an abortion, they can take her out of state. Because of the tight correspondence between poverty and race, those who will feel the impact of the ban the most will be minorities and undocumented immigrants.
“There’s a class dynamic, a race dynamic and an ethnic dynamic” to the legislation, said Michaels.
Because most clinics and abortion providers can’t afford to take the risk of being sued, the law has had a deterrent effect. And that’s what we’ll likely see with proposed legislation concerning education, should those bills pass, Michaels added.
For example, even teachers who don’t teach critical race theory or even know what it is might feel pressured to skip a unit on the civil rights movement or just offer students the broadest outlines of that period out of fear of parental lawsuits, he said.
The mechanism of public enforcement also circumvents the usual counterbalancing that is part of our robust legal system.
Speaking during a panel at the Faith and Freedom Coalition’s 2021 Road to Majority conference in June, the author of the Texas abortion ban, state Sen. Bryan Hughes, explained that public enforcement makes it next to impossible for opposing groups to challenge the legislation.
“The left has no one to sue — (they) can’t sue 30 million Texans,” he said.
As Hughes predicted, opponents of the Texas law have struggled to challenge it.
Last month, the Supreme Court ruled that a lawsuit brought by abortion providers against state judges and clerks could not proceed. The justices did allow for a challenge against state medical licensing officials to move forward, but they did not block the policy from being enforced as the lawsuit plays out.
Now, legislators in Florida, Alabama, Arkansas and Ohio are all working on drafts of similar abortion bills.
Florida, in particular, seems to be a hotbed of legislation that will allow for enforcement via civil lawsuits. Gov. Ron DeSantis’ “Stop WOKE Act” includes a provision that will allow parents to sue schools for teaching anything related to critical race theory. And, earlier this month, a bill was introduced to the Florida legislature that would allow parents to bring a lawsuit against a school if it is “likely” to infringe on parental rights, according to Alison Gill, vice president of legal and policy for American Atheists.
It’s not just conservatives who are proposing these sorts of laws. In two left-leaning states — Illinois and California — legislators are working on bills surrounding gun control that include public enforcement mechanisms; officials in New York state are likely to follow suit, Michaels wrote in The Washington Post.
But, when it comes to gun control, we might not see the same deterrent effect as we saw with the Texas abortion ban because abortion providers and the gun lobby have very different resources at their disposal, Michaels noted.
In the scenario that the bill passes in California, for example, “maybe the NRA sets up a legal defense fund and just pours money into it,” he said. “It depends on the nature of the action being regulated and who is in the position to support it” — making the impact of these laws, and their effect on democracy, difficult to predict.