Novel abortion law experiments continue.
Within our federal system, our fifty states enjoy great freedom to experiment with laws that they believe are in the interests of their citizens. In a sense, this is like the scientific process, where different approaches can be tested to see if they work. This has been called the “laboratory of democracy.”
The ongoing experiments with abortion laws are a perfect example. The Texas law banning abortions after a fetal heartbeat is providing the most recent model for other states. The innovative feature of that law is the decision to ban all public officials from any enforcement efforts, while empowering any private citizen to bring a civil action against anyone who performs or assists an abortion in violation of the law.
That part of the law is causing great consternation among pro-abortion advocates, because they are finding it extremely difficult to bring an action to challenge the law’s constitutionality. They managed to get a case up to the U.S. Supreme Court, but that court punted back to the federal appeals court on the theory that, despite what the law plainly says, maybe somewhere there was still some public official who could enforce the law. The appeals court promptly lateraled it over to the Texas Supreme Court. That court killed the litigation last week by holding that the law does indeed mean exactly what it says—no public official can enforce it.
Meanwhile, the Idaho legislature has now passed a bill, which their governor is likely to sign into law, that is modeled after the Texas law but has a few very interesting twists.
Punishing just the abortionist
The Texas law is extraordinarily broad in whom it would punish. It would encompass not just those who perform the abortions. It also reaches anyone who aids or abets the abortion, even if they don’t know that an illegal abortion will take place. It also punishes anyone who merely intends that an illegal abortion take place, even if they don’t do anything to bring it about. The Idaho bill tightens this up considerably, by penalizing only the persons who perform the abortion.
Limiting those who can sue to certain family members
The Texas law is also exceptionally broad in whom it allows to bring a lawsuit. Virtually anyone can sue under that law, regardless of whether they have any connection to the woman and child, or even to the State of Texas. That puts the abortionists at risk of being defendants in an unlimited number of lawsuits by an unlimited number of people.
The Idaho bill narrows this, but in a very unusual way. The bill would permit a suit by the mother, father, or grandparents of the unborn child. That makes sense, since the parents obviously have a legal interest in the life of the child, and like many states, Idaho recognizes some legal interests on the part of grandparents (like visitation rights).
The law also permits lawsuits by siblings and even aunts and uncles. This is an odd provision – it’s rare for a sibling, aunt, or uncle to have legal standing to assert a child’s rights. The sole situation I can think of would be a wrongful death case, but only if the child’s parents are also both dead. This could create the peculiar lawsuit where a relative sues over an abortion that the mother actually consented to. We would have to see how that plays out in practice.
Like the Texas law, the Idaho bill also bans any public official from bringing an enforcement action. In fact, the bill adds that no public official could even intervene in a lawsuit, but they can file an amicus curiae brief. This is obviously intended to prevent a creative abortion clinic attorney from finding a loophole that would allow them to sue the state.
But it raises a potential problem, as we saw in a Supreme Court decision just last week. There, the Court was faced with a challenge to a Kentucky law banning dilation and extraction abortions. The state had first declined to appeal a ruling that struck down the statute. But when a new pro-life attorney general was elected, he sought to intervene in the case to defend the law’s constitutionality. Fortunately, the Court allowed the attorney general to step in and fight for the law.
That highlights the possibility of collusive lawsuits. That’s an action brought by a plaintiff who really doesn’t have a dispute with the defendant, but is trying to get a favorable court ruling. This is a surprisingly common occurrence, particularly in some areas of regulatory law, where “sue and settle” is a tactic to get a consent decree that both parties wanted from the start.
One way to prevent these kinds of phony lawsuits is to let other interested parties intervene. Filing an amicus brief is not enough, because only the parties control the course of the litigation. So I can easily imagine a collusive lawsuit by an abortion advocate against a clinic, seeking a court ruling that the Idaho bill is unconstitutional. If the attorney general can’t intervene—as in the Kentucky case—there would be nobody who was really interested in defending the law.
All of this is an illustration of the importance of the “laboratory of democracy.” As Justice Louis Brandeis said in coining the phrase, “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
If the Supreme Court in the Dobbs case gives states more leeway to regulate or prohibit abortion, we can expect to see a lot more novel and courageous experimentation in the future.