It repurposes a legal tactic that progressives have been using to great effect for a century.
Last week, the Supreme Court decided not to stop a Texas abortion law from coming into effect on the grounds that the abortionists who filed the lawsuit had sued the wrong defendants: The law confers upon private citizens the exclusive power to sue people who perform or procure abortions, and the Court ruled that it was “unclear whether the named defendants in [the abortionists’] lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
Allies of the abortion industry reacted as anyone could have predicted, tweeting as if the sky were falling and fretting about the rule of law. Perhaps more surprising was the reaction of many lawyers who are not obvious allies of the abortion industry. In a dissent, Chief Justice John Roberts, a George W. Bush appointee, characterized the Texas law as “not only unusual, but unprecedented.” Other constitutional conservatives worried that the Texas law would set a bad precedent that the Left would exploit.
The truth is that the Texas law is not unprecedented, and concerns that it will create a new and potent legal tactic through which progressive activists can deprive fellow citizens of fundamental and constitutional rights are misplaced: Progressives have been using the legal tactic in question to precisely that end for a century.
To see why constitutional conservatives might be concerned, it helps to understand why American law disfavors private prosecutions of public wrongs. The general rule is derived from two foundational principles.
The first principle is that private wrongs infringe private rights, while public wrongs — what we call crimes and misdemeanors — violate public rights, which is to say, rights belonging to the people as a whole. Private rights do not belong to the public, and public rights belong to no individual person.
The second principle is that only the person whose right has been infringed may take the wrongdoer to court. Only the public, acting through its elected executive officials, may prosecute a criminal action vindicating a public right. And only a person whose private right has been injured may seek a judgment of liability for violation of that private right.
So, if Don Defendant commits a crime, then only the state, acting as the agent of the people as a whole, may initiate criminal proceedings against Don. But if Don lies about Pat Plaintiff and injures Pat’s reputation, only Pat can bring a civil action against Don for a legal remedy (usually money). Neither Pat’s brother Billy nor his wife Wanda may sue Don on Pat’s behalf; the lawsuit is the exclusive property of the person whose right was injured.
These principles are essential to our legal institutions. As I have discussed elsewhere, they shaped the architecture of our law over centuries. And they continue to serve an important function in making sense of basic legal doctrines that courts and lawyers take for granted. Together with the presumption of innocence and the other requirements of due process, the public–private distinction and the doctrine prohibiting third-party enforcement of rights keep courts in their place. They prevent activists from using the courts to rewrite laws and ensure that the people whose rights are at stake in any litigation are involved in the proceeding as parties.
But these are not the only principles at work in the law, and for several centuries Anglo-American law has made some limited provisions for third-party enforcement of rights. Known as relator actions, these special proceedings are precedents for the Texas law that should be familiar to most lawyers. A well-known example in American law is the whistleblower qui tam action, which incentivizes people with knowledge of public fraud to pursue legal remedies against the perpetrators. Another familiar example is inter partes review of patents, in which citizens ask the Patent Office to invalidate patents alleged to be unmeritorious. The principle used to justify relator actions is that someone who abuses or infringes a public right should not get away with it simply because officials lack the resources, willingness, or access to evidence necessary to hold him to account.
It is difficult to imagine two public wrongs that are more significant than the intentional killing of a human being (in legal terms, murder) or the removal of a human being’s arm or leg (in legal terms, mayhem). If unborn human beings are persons, then abortion is murder, and many abortions involve mayhem. One could fail to recognize the precedents for the Texas law only if one assumes that murdering and dismembering unborn persons is not a legal wrong.
Ironically, Chief Justice Roberts, in his dissent, failed to mention that the Supreme Court’s own precedents already authorize private persons to assert the rights of third parties in abortion lawsuits. Since 1976, the Court has allowed abortionists to assert the rights of their female patients in court when attempting to block enforcement of abortion laws, even laws that secure the health and rights of those very same female patients. No other medical professionals are permitted to assert their patients’ rights in order to obtain immunity from the law. And the Court has never allowed anyone to initiate a lawsuit against abortionists on behalf of their unborn victims. This anomalous asymmetry seems not to have been lost on Texas legislators, even if it apparently escaped Chief Justice Roberts’s notice.
The Court has often ignored basic doctrines of American jurisprudence when progressive causes are at stake, and not just in abortion cases. Most projects of social engineering that the Left has constructed over the last century, from zoning ordinances to discrimination commissions, blur the distinction between public and private rights. And the Court makes many progressive aims achievable when it allows leftist activists to assert rights not their own. For example, eugenics laws, such as the Virginia statute that the Court enthusiastically endorsed in the 1927 decision Buck v. Bell, empowered institutional administrators to pursue the forcible sterilization of vulnerable Americans when they deemed it to be in the “best interests of the patients and of society.”
It is easy to understand why abortion proponents have selective memories of these legal precedents and so little interest in the jurisprudential principles that undergird the rule of law; murder and mayhem are inherent legal wrongs, and the only way to portray abortion as a “right” is to tear apart the fabric of American law and to ignore what the Constitution actually says.
It is more difficult to understand why conservative legal luminaries who are not pro-abortion would portray the Texas statute as unique and unprecedented. Perhaps they have lost sight of the principles that render the rule of law coherent. The Court often abandoned those principles early in the 20th century in order to ratify progressive projects of social engineering. The only innovation of Texas legislators was to use the Left’s tactics in defense of our society’s most vulnerable.