The Washington Post’s critique of the Texas Heartbeat Law misses this irony.
One person’s “vigilante” is another person’s “private attorney general.” It all depends on whose side you’re on.
An interesting opinion piece disguised as a news analysis appeared in the Washington Post last week. It was an attempt to discredit the Texas law that banned abortions after a fetal heartbeat is detected.
That law is indeed an anomaly in American law. Usually, a person cannot bring a civil lawsuit unless they are personally and directly damaged by the act of another. That’s the legal doctrine of “standing.” The Texas law gives essentially universal standing for anyone to sue abortionists, while banning public officials from any kind of action. In effect, it appoints an unlimited number of “private attorneys general” to enforce the law.
The Texas law is deeply hated by progressives. Its goal is to reduce the number of abortions, and it is apparently succeeding.
The Washington Post fans the flames of hatred for this law as it describes the law in terms that would horrify its progressive readers, using words like “vigilante,” “book-burning,” “bounty hunter,” and “militias.” The Post further invoked opposition to evolution and transgenderism, and vague threats to democracy—even comparing the law to the bounties given to slave hunters, and to the enforcement of Jim Crow laws.
There are certainly serious reasons to be concerned about the Texas law. It is easy to see how it can be abused to attack legitimate constitutional rights—like the religious liberty of churches and schools that do not want to participate in abortion, euthanasia, gay marriages, gender transitions, and so on. It does seem to violate fundamental due process to craft a law deliberately to prevent people from challenging it.
But it displays a strange ignorance to view private enforcement as such a nightmare.
The ability of private parties to enforce laws is deeply rooted in the English common law and even further back in Roman law. People were able to commence criminal prosecutions on their own behalf (and still are permitted in some U.S. jurisdictions). Private parties could bring civil lawsuits “on behalf of the king” (the fancy legal term for this is a “qui tam” action). In the days of sailing ships, it was common for governments to license privateers to wage war against their enemies by way of “letters of marque”—which are even specifically authorized in our Constitution.
The article does recognize that private enforcement is written into a number of laudable laws on the books, such as the Clean Water Act and the False Claims Act. And it mentions the importance of whistleblowers to the enforcement of other laws.
But the idea of a private party enforcing laws against abortion is clearly a bridge too far for the Washington Post. The irony is that the development of abortion law itself is almost completely the creation of pro-abortion “private attorneys general.”
Remember the doctrine of “standing” that I mentioned above—only people who are directly hurt can bring a lawsuit. That’s the general rule, but in abortion cases—and pretty much only in those cases—the Supreme Court allows doctors and abortion advocates to bring lawsuits to challenge abortion restrictions. They’re not defending their own constitutional rights. Rather, they’re using the legal fiction that they are asserting the rights of pregnant women.
You can see this in the names of prominent abortion cases. After Roe v. Wade, virtually all of the Supreme Court cases are named after abortion clinics, doctors, or Planned Parenthood. No pregnant women appear. It’s all done by private parties, using a legal “loophole.”
So how is that any different from what the Texas law does? Doesn’t it rely on the same kind of legal “loophole” that the Post article clearly deplores? Isn’t Planned Parenthood a “vigilante” or a “bounty hunter,” since they can collect attorney’s fees if they win the case? And since a disproportionate number of African American babies are killed in abortion, is an analogy to slave hunters worth contemplating?
The Washington Post authors, and their readers, may sidestep contemplating these questions. It would seem that abortion poisons everything it touches—law, logic, language, and morality. Because the ideology of abortion blinds people to truths that are right before their eyes—like the humanity of the unborn children whose lives are being saved by the Texas law and other abortion restrictions.