The unusual legal strategy used to ban most abortions in Texas is already increasingly being used in Republican-led states to crack down on pornography, LGBT rights, and other hot cultural issues.
While private local residents filing lawsuits are entrenched in some arenas like environmental law, some warn that expansion and application to new territories could boomerang if Democrats used it on issues like gun control.
When Attorney General Merrick Garland announced that the Department of Justice would sue Texas law, he said it could become a model “for action in other areas, by other states, and in relation to other constitutional rights and safeguards.” He was concerned about the “damage that would be done to our society if states were allowed to implement laws and empower any private individual to violate the constitutional rights of others.”
The concept has surfaced in other states, including on issues such as abortion, where courts have ruled against conservative-backed laws.
In Missouri, a new law allows people to sue local law enforcement agencies who enforce federal gun laws. Kansas residents can go to court to challenge mask requirements and restrictions on public gatherings, and Ohio residents can sue any action taken in response to an emergency.
It is also an enforcement mechanism for laws restricting the toilet use of transgender students in Tennessee and the participation of their Florida sports teams.
“These laws were purposely designed to avoid appeal in federal courts,” said Jessica Clarke, a law professor at Vanderbilt University who specializes in anti-discrimination law, of the action in Tennessee and Florida.
An anti-porn law was passed in Utah last year requiring websites to warn of dangers to minors. It was labeled a violation of free speech by adult entertainment websites, but the potential onslaught of lawsuits convinced the major websites to abide by it before a single person sued.
Brady Brammer, the Republican MP from Utah, said he based his bill on Proposition 65, which allows people exposed to potentially carcinogenic materials to sue and collect some sort of “bounty” if they win. Civil enforcement has long been an integral part of environmental law, with private attorneys acting as a kind of extension of overburdened regulators. Court settlements with companies often bring money to green nonprofits.
“The Republicans are weaponizing the tool that the Democrats thought they had, namely civilian enforcement,” Brammer said. “They are following tactics that the Democrats have been using for years and decades, and they are doing it for conservative purposes.”
The Texas abortion law, which lawmakers are trying to copy in several other states, has another unusual feature that has greatly increased the number of people who can sue. Unlike the vast majority of civil law, people do not have to prove that they are directly affected.
After the Supreme Court ruled not to block the law, the threat of lawsuit alone resulted in some Texas abortion providers stop offering abortions at all, even those scheduled before the six weeks.
Others, however, suggest that the tactic could fall back on the Republicans, who have long sought to limit the size of the trials on cases such as medical malpractice.
For example, if a wide-ranging civilian gun control enforcement tactic were used, it could allow people to sue gun sellers if the gun was used to injure someone, said Texas attorney Michelle Simpson Tuegel, who blocked the abortion law.
“This Texas law is a double-edged sword for Republicans,” she said. “It is potentially really dangerous for them to do something like this on other issues that could be directed against them in a similar way.”
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