The Texas abortion ban created a ‘vigilante’ loophole. Both parties are rushing to take advantage.
Abortion rights supporters rally in October 2021 outside the Texas Capitol in Austin. A state law that bans nearly all abortions after about six weeks allows citizens to sue to enforce it. (Stephen Spillman/AP)
After the Supreme Court allowed the Texas bill to take effect, at least 31 copycat laws on a variety of hot-button issues have been filed around the country.
by Kimberly Kindy and Alice Crites
Illinois business owners could sue customers who present fake vaccination cards.
Oklahoma parents could sue teachers who offer opposing views to a student’s “closely held religious beliefs” — including evolution.
And any California resident could sue a wide swath of those involved in the gun industry — from the manufacturer to the local gun shop owner — if one of their assault rifles or “ghost gun” kits are used to injure or kill someone. They don’t even have to be a victim of the violence.
All three proposed laws, which promise awards of at least $10,000, have one thing in common: They’re among numerous new bills modeled after a GOP-backed Texas abortion law permitting citizens to sue anyone who helps a woman obtain an abortion after about the six-week mark — from the doctor who performed the procedure down to the person who provided transportation to the clinic.
When the U.S. Supreme Court declined in December to temporarily block the Texas law, which established the minimum $10,000 court award, state lawmakers saw a green light to use a new tool: letting citizens sue each other as a way to skirt around constitutionally questionable laws.
Both Democrats and Republicans have embraced the change. Since the Texas law took effect in September, at least 31 copycat laws have been introduced across the country, according to a Washington Post review of legislative and other public records. The laws focus on a wide variety of polarizing issues — including book banning, gun control and transgender athletics.
Under President Biden, the U.S. Department of Justice criticized the Texas law, saying it “deputized ordinary citizens to serve as bounty hunters,” while other legal opponents have referred to the lawsuits it encourages as “vigilante litigation.” Critics say the Texas law aims to bypass the precedent of Roe v. Wade, which established the right to abortion nationwide, by handing enforcement over to citizens — a tactic that states could use on any number of similarly polarizing issues.
Many of the Democratic lawmakers who have introduced the copycat bills said they oppose the legal strategy used in the Texas law but are unwilling to cede the tool to their Republican counterparts for solely conservative causes.
“If they are going to open that Pandora’s box, let’s see where it can be used for the public good,” Illinois state Rep. Ann Williams (D) said in an interview. “We’ll have to be very careful about how it is used and what kind of society it could produce. Do we want to live in a society that is like ‘The Handmaid’s Tale’ come to life? I don’t think so.”
When the Supreme Court declined to block the Texas abortion bill in December, California Gov. Gavin Newsom (D) asked Democratic lawmakers to introduce copycat legislation that targets the gun industry, including those who make kits for ghost guns, untraceable firearms assembled from components often bought online.
“If Texas can use a law to ban a woman’s right to choose and to put her health at risk, we will use that same law to save lives and improve the health and safety of the people of the State of California,” Newsom said when the bill was introduced last week.
Political experts said the extreme partisan polarization in the country — both in public office and among the general public — has created fertile ground for the Texas-style copycat bills to proliferate.
“The times we are in has made it ripe for this,” said Eduardo Moncada, a political science professor at Barnard College in New York. “These tools are being used to advance certain types of political agendas. They offer a great way for political actors to give their base a way to advance their own personal agendas. It’s less about social agreement and more about distributing powers to certain segments of society.”
Jonathan Mitchell, a former Texas solicitor general who is credited as a principal architect of the state’s abortion bill, defended it, saying government officials sometimes are unable or unwilling to enforce laws on their own. He believes other Texas-style laws will be most effective on “culture war issues” such as enforcement of marijuana and abortion laws.
“Private civil enforcement is useful when there are obstacles to conventional public enforcement. Sometimes illegal activities, such as fraud, are difficult for the government to detect, and private civil enforcement can encourage whistleblowers and deter conspiracies,” Mitchell said in a statement to The Post.
But Regina Bateson, a political scientist who is an expert on vigilante political movements, said that if this form of governing becomes common, it could undermine American democracy.
“This delegation of government authority to private citizens is problematic for the rule of law and the quality of democracy in the United States,” said Bateson, a former assistant professor at MIT and a visiting professor at the University of Ottawa in Ontario. “I see strong parallels with militias, which have become increasingly active in recent years, including their involvement with the Jan. 6 attack on the Capitol.”
A majority of the copycat bills reviewed by The Post are focused on conservative causes, including seven abortion bills that closely mimic the Texas law.
More than a dozen are education bills, with Republicans taking sides on disputes over school curriculum, library books, mask mandates and general-neutral bathrooms — all topics of heated battles at public school board meetings in recent years.
Several of the education bills provide a legal path for parents and even the general public to sue if “divisive” topics — such as race relations or sexual orientation — are discussed in the classroom. In Florida, two bills that would ban discussions of gender identity and sexual orientation have led critics to dub them the “don’t say gay” bills.
At least two other education bills, in Tennessee and Oklahoma, would allow parents and guardians to sue school districts to remove books with any content they think is “obscene” from the shelves of school libraries. Still another bill in Florida would allow students to bring a lawsuit against a school district if they believe they have been “deprived of an athletic opportunity” because a transgender athlete took their place in an event.
Most of the copycat bills have not advanced out of committee to their state’s House or Senate for a vote.
Legal experts predicted the proliferation of the copycat bills months ago.
Erik S. Jaffe, an attorney with the Firearms Policy Coalition, wrote in a Supreme Court amicus brief in October that if the court let the Texas law stand, it would “undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights.”
“It doesn’t take a genius to figure this out,” Jaffe said in an interview. “To me the prediction that this would be used for all sorts of issues was self-evident. What I find remarkable is that people are shocked.”
Supreme Court Justice Brett M. Kavanaugh, among the five conservative judges who voted twice against blocking the Texas law, said this possibility also concerned him.
“There’s a loophole that’s been exploited here or used here,” Kavanaugh said last year, adding that the same legal mechanism could be used to limit other constitutional rights. “It could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights, if this position is accepted here.”
Days later after Kavanaugh spoke, state Rep. Margaret Croke (D) introduced her bill in Illinois, similar to the one in California, that allows private individuals to take to court anyone involved with making, shipping or selling firearms that can be linked to an injury or death in the state.
“I’m super upset about the Supreme Court decision in Texas,” Croke said in an interview. “But if they are going to say that the logic is sound, then I am going to use it for a public health crisis, which is gun violence.”
There’s a long history in the United States of private citizens being incentivized to enforce laws — and much of that story is darker than the current trend.
“The profound historical antecedent to this is the bounties that state governments offered that allowed slaves to be retrieved if they fled,” said Charles Derber, a sociology professor at Boston College. “Ordinary people could confine them and then turn them in for the rewards.”
Derber said similar outsourcing happened after Jim Crow laws were passed, with state and local governments giving local militias — including the Ku Klux Klan — the power to intimidate and assault Black citizens to keep them from exercising their new rights.
More recently, Congress has encouraged private enforcement of more anodyne laws. The Clean Water Act allows “any citizen” to file a lawsuit against an individual or company that is a source of water pollution. And the False Claims Act allows private individuals with knowledge of past or present fraud against the federal government to file a lawsuit on behalf of the government. Many civil rights statutes also rely on this style of enforcement, brought by what are commonly referred to as “private attorneys general.”
But the Texas abortion law took that idea in a new direction. It largely takes enforcement out of the hands of state officials, which lawmakers hoped would carve out a unique way to attack the protections of Roe v. Wade. By removing state enforcers from the equation, legislators aimed to make it impossible for opponents of the law to overturn it in court, since there is no clear state official or agency to sue.
When the Supreme Court allowed the law to stand, legal experts said, it gave tacit approval to the model, including the provisions that created the bounty system allowing private individuals with no direct stake in the alleged legal violation to sue and potentially collect a minimum of $10,000.
Lawmakers around the country took notice, and soon began proposing copycat laws. However, most of the copycat bills do not seek to block state officials from also acting as enforcers.
In Oklahoma, state Sen. Rob Standridge (R) introduced a bill in December that would allow parents to sue a school district if it declines to ban a book that they want removed from their child’s school library. If the court sides with the parents, they can collect $10,000 for each day after the court order that the book remains on the shelf.
Standridge said he used the same legal mechanism as the Texas abortion law because school districts ignored one of his bills — which became law last year — that temporarily made it illegal for public schools to have mask mandates. A state judge has since issued an injunction that allowed the mask mandates to be reinstated.
“That’s the only reason why there’s a financial penalty — I don’t want them to ignore the law like they have done before,” Standridge said in an interview, adding that the book ban bill is necessary because “Christian parents don’t think the schools should be evangelizing children into sexual ideologies.”
A few weeks ago, Standridge followed that bill with another that would allow teachers to be sued for $10,000 for each time they say something in the classroom that may contradict a student’s religious beliefs. That could include discussions on birth control, evolution or the big-bang theory.
The bill also would require teachers to pay any court-ordered fines with their own money. If they turn to friends or relatives, the teachers union or a GoFundMe campaign to pay the bill, the law requires that they be fired. After fierce pushback on that bill, Standridge said he will focus on the book banning measure for now and will probably take up the religion bill next legislative session.
Jaffe and other legal experts said the true aim of the Texas law — and the copycat bills that have followed — is to create a chilling effect, not government enforcement or lawsuits. That’s already the case in Texas, where abortion clinics throughout the state have closed down, even though the law is still being challenged. (Although the outcome of the challenges is yet to be determined, many legal experts think the Supreme Court’s decision to not intervene will allow this style of citizen enforcement to continue.)
“If you make the threat big enough, you’ll never have to actually enforce the law,” Jaffe said. “If we said the penalty for jaywalking is a million-dollar fine and 20 years in jail, people would not jaywalk.”
Standridge said that is precisely his objective with his book-banning bill. “My intent is only to put teeth in there so they will actually remove the book,” he said. “I don’t want them to pay the $10,000.”
Indiana State Teachers Association President Keith Gambill said an education bill that the Indiana House passed earlier this month — and that now is under consideration in the Senate — also would have that type of chilling effect.
The bill calls for a ban on teaching eight “divisive concepts” on a variety of topics including race, sex and politics. Gambill, who is a middle school music teacher, said that if the bill passes, he can see how it could weigh on his course curriculum. He currently teaches African American spirituals, which sometimes used coded language to teach enslaved people about the Underground Railroad.
“You can’t talk about this without talking about slavery,” he said. “I’m worried that teachers will just stop teaching some things altogether for fear of becoming a target, including me.”
Experts say the Texas-style measures differ significantly from other modern comparisons, like the civil rights statutes that allow citizens to sue as government agents.
“The civil rights model of private enforcement was all about putting more tools in the hands of those who are vulnerable to discrimination in society,” said Jon Michaels, a UCLA law professor. “And this is actually giving it to the bullies of society.”
However, proponents of the Texas abortion law say the tool allows citizens to enforce statewide laws even if local prosecutors and other politicians think their constituents might object.
“Sometimes the authorities are unwilling or reluctant to enforce the law. … These situations make private civil enforcement an effective mechanism for ensuring that the laws are obeyed,” said Mitchell, the Texas abortion bill architect.
Archon Fung, a Harvard Kennedy School political science professor, said he worries about who will be motivated to step up and attempt to act as enforcers if some of these bills become law. He also points to the bounty system that some local governments use in their contracts with tow truck companies as a clear example of the downside.
“Because they get a bounty to tow, these tow truck owners have a huge incentive to tow even if there are a few minutes left before the time runs out on the meter,” Fung said. “Do you want to see these kinds of incentives driving 12 different areas of public policy? It could lead to a very, very perverse form of government.”