When the Texas legislature passed the Texas Heartbeat Act into law in 2021, it was a game changer for the pro-life movement. It was among the few state attempts, pre-Dobbs, upheld by the Supreme Court as a curb on abortion – precisely because of its novel legal approach.
Unlike other states’ restrictions, where the government would directly intervene to stop an abortion, the Texas law took a hands-off approach that removed the state from the equation. It created a private right of civil action against doctors and clinics, allowing individual citizens to sue them for abortions — a minimum of $10,000 per baby — after a heartbeat is detected. Importantly, it also barred the state from bringing any civil suits under this law. This strategically kept the government from “infringing” on any supposed rights granted under Roe or Casey, which would have raised constitutional questions about state power. Instead, the law merely “enhanced” citizens’ civil rights to sue, with a practical effect that would fatigue abortion providers with litigation to the point of driving them out of business.
This legal novelty is now shaking up the conservative movement across the country by advancing constitutional rights while simultaneously limiting the role of government. No fewer than six other states have pledged to adopt the same approach, with Oklahoma passing an identical law last month. With the Fifth Circuit substantively upholding the Texas law and dismissing all challenges, the approach has withstood legal scrutiny. Even before the Dobbs decision is formally rendered, abortion could be made impossible in conservative states across the country, ensuring that thousands of unborn children survive.
It’s not just abortion, however. On a whole host of thorny legal issues, there is promise in the “civil remedy” approach to advance conservative priorities in line with judicial review. On Tuesday, that promise bore fruit as Texas notched another win at the Fifth Circuit, which temporarily upheld H.B. 20, a Texas law targeted at Twitter and Facebook that prevents Big Tech companies with over 50 million monthly users from censoring lawful speech. Like the Heartbeat Act, it created a private right for users to sue companies, with financial burdens that will compel the return of content removed. Though the decision is merely an injunction, for now, it effectively undermines Section 230 of the Telecommunications and Decency Act, which previously gave companies legal immunity for content removed. Repeal of Section 230 has become a goal for many conservatives. The “civil remedy” approach is also being considered to secure gun rights and protect free speech on college campuses.
Good. Good riddance to Section 230, Roe, Casey, and other laws that now shield the grossest abuses of constitutional rights. They will be emasculated by the civil remedy, a cure that is creative and constitutional, and should be adopted nationwide to cement conservative priorities in states. Though Democrats will now use the same approach for their own designs — e.g., California Governor Gavin Newsom, who promised to use the civil-remedy approach to ban assault weapons — consistency was never a defense against them, anyway. The cat’s now out of the bag, and they shall have to be defeated at the ballot box. Wherever it’s feasible, though, Republicans must show gumption in standing up for constitutional rights against a daft but deft Left that wants to take them away. This is one strategy. Let the Lone Star be our guide.