Perspective: On deputizing private citizens as snitches, where do we draw the line?

Reporting on our neighbors has a long history of going sideways. And it doesn’t always turn out as intended

The fate of Texas’s novel abortion law, which allows one citizen to sue another for “aiding and abetting” an abortion after a heartbeat is present, now rests with the Texas Supreme Court, after three stops at the U.S. Supreme Court and five in the lower federal courts. As this game of hot potato proceeds, seven states have introduced knock-off abortion legislation pitting one citizen against another.

In Texas, the incentive to sue clinics, doctors and even family or friends assisting a woman before and after an abortion is baked into the law. If successful, litigants will be rewarded with at least $10,000.

Already, 14 cases have been consolidated into one.

As the country and the courts wait on the Supreme Court to decide whether states can limit abortions prior to viability — the question raised by a second case, Dobbs v. Jackson Women’s Health Organization — we should consider whether laws pitting one neighbor against another are moral and just in a free society. Whether we vote red or blue, I think we know the answer. Reporting on our neighbors, ratting out people for private activity, has a long history of going sideways. And it doesn’t tend to accomplish what’s intended.

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In Salem, Massachusetts, in the late 17th century, hundreds were accused of witchcraft. Whisper campaigns and widespread panic resulted in 14 women and five men being put to death. In the 1950s, Joseph McCarthy drummed up anti-Communist fervor among the general public, creating a climate of fear and conformity.

More recently, our panic is over COVID-19. Flight attendants are encouraging passengers to report those who aren’t complying with masking requirements. In early 2020, Vermont created an online tool for residents to report businesses and neighbors who weren’t following COVID-19 precautions; police departments were receiving “a call or two a week from people reporting their neighbors.” Last year, Oregon Gov. Kate Brown actually encouraged this form of enforcement, telling people to call the police on neighbors disobeying COVID-19 protocols, with potential penalties up to 30 days in jail and $1,250 in fines.      

With the Texas heartbeat legislation, this sort of “citizen snitching” has been codified into law.

This is not to say that everyday people shouldn’t report true crime when they suspect it. We need whistleblowers. The federal False Claims Act allows those with evidence of fraud against the government to file lawsuits on the government’s behalf and keep part of what is recovered. But the government is not well positioned to police every arrangement for fraud, although it has a direct interest in the outcome. Consider the largest settlement in U.S. history, against GlaxoSmithKline for off-label marketing and failing to report drug safety data, which was brought to light by a pharmaceutical sales representative. The company paid $3 billion.

Crime Stoppers organizations, police departments and even the FBI offer rewards for saying something “if you see something.” Witnesses of violent crimes have unique, usable information. This also goes for child abuse and endangerment, although these reports come without reward and rely on our shared desire to protect children.  

But encouraging the reporting of a perceived crime is not without consequences. Rewards may unjustly shift the priorities of the public and law enforcement agencies to more high-profile cases. Anonymous reports of child abuse and neglect have disproportionately impacted families of color and those living in poverty. Still, in these cases, the risk of false reporting likely does not outweigh the benefits.

While many abortion opponents might romanticize taking on the role of Dog the Bounty Hunter, what happens when the tables turn?

Texas’s abortion law, however, is not exposing government fraud or terrorist plots. Rather, it enlists private actors to sue, and in the opinion of some, it absolves Texas officials from enforcing the law. Supreme Court Justice Sonia Sotomayor described it as “deputiz(ing) the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”

The question of when states can ask one neighbor to snitch on another, and when they can’t, has been lost in the larger debate around the morality of abortion. Yet, asking the public to enforce and police abortion restrictions will just further divide us. Americans have strong and diverging opinions about abortion. Abortion opponents see the Texas law as saving babies; abortion advocates see it as harming patients.

The encouragement of “voluntary espionage” between neighbors hints at forms of totalitarianism that most Americans would publicly rail against. North Korea utilizes citizens as spies to inform the government of anti-government behavior of their fellow citizens. While the penalty there is certainly much greater — potential public execution ­— the underlying mechanism is the same, promoting fear and mistrust among neighbors.

If allowed to stand, the Texas law risks becoming a model for legislation for a host of contested questions, replacing public enforcement with snitching by private citizens for any number of activities that may or may not be illegal. Justice Elena Kagan observed at an oral argument that the law’s mechanism could be extended to any constitutional right, from “(g)uns, same-sex marriage, religious rights, whatever you don’t like.” California Gov. Gavin Newsom has already announced that he plans to do just that — allowing private citizens to sue gun manufacturers, distributors and sellers.

While many abortion opponents might romanticize taking on the role of Dog the Bounty Hunter, what happens when the tables turn?

Robin Fretwell Wilson is the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and is a Public Voices fellow with The OpEd Project. Other members of The OpEd Project contributed to the development of this essay.