The law of unintended consequences is inexorable and dangerous.
Last week, the Supreme Court handed down a decision about the Texas six-week abortion ban. That law was constructed specifically to make it difficult for abortion clinics to challenge the law before it went into effect. Its ingenious method is to ban enforcement by public officials, while empowering private parties to bring suits against abortionists. The Supreme Court partially upheld this mechanism, and allowed the law to remain in effect pending further litigation.
While this has provided good short-term benefits in Texas—abortion clinics are virtually out of business—it has set in motion a process that could hurt prolifers elsewhere.
Yesterday, Governor Gavin Newsom of California announced that he wanted his state to adapt the Texas model to allow private citizens to sue manufacturers and sellers of “assault weapons.” Like the Texas law, Newsom’s bill would allow parties to collect fines of $10,000 per violation from their targets, as well as legal fees. The obvious intent is to scare people off from trying to sell these types of guns.
This bill wouldn’t ordinarily seem relevant to prolifers. But it comes on the heels of Governor Newsom’s plans to make California an abortion “sanctuary” if the Supreme Court overturns Roe v. Wade. That could include paying for travel and lodging for women traveling to California and paying for the abortion itself. The advocates for the bill also want the state to go after pregnancy centers for allegedly misleading information. Earlier this fall, New York’s governor also said she wanted to take “aggressive action” to make the state a “safe harbor” for abortion.
Aside from the troubling concept of an “abortion sanctuary state,” the danger is that pro-abortion states will combine these two initiatives to suppress the rights of prolifers to offer non-abortive options and support to pregnant mothers.
Many jurisdictions, including California and New York City, have already tried to impose notice and signage rules on pregnancy centers that would have forced them to promote abortion. Limits on prolife advocacy and prayerful witness outside abortion clinics have also been passed in many places. Some politicized attorneys general have filed suits to enforce these laws, but of course their resources are limited.
But the Texas model would allow anybody to enforce these laws. The effect could be devastating. Prolifers would be rightly afraid that they could be sued by anyone at any time, with the looming threat of ruinous fines as well as legal fees. Pregnancy centers could be put out of business for even the most technical violations of stringent signage laws. Religious groups such as the Sisters of Life could be penalized for not explicitly disclosing that they don’t refer for abortions. Radical abortion advocates, who are already trying to forcefully suppress the presence of prayerful witnesses at clinics, could use this to scare off sidewalk counselors and witnesses completely.
The law of unintended consequences frequently means that short-term benefits are offset or outweighed by long-term damage. The news out of California suggests that this is precisely what is happening as a result of the Texas law. To prepare for these possibilities, prolifers have their work cut out for them.