Dershowitz: This Texas abortion law is so unconstitutional, I don't know where to begin

We’ve had many unlikely developments in American politics over the past five years but Alan Dershowitz pontificating on Newsmax, the far-right answer to Fox News, is up near the top.


Then again, when has Dershowitz ever said no to any opportunity to be on television?

Watch, then read on:

He’s right about Texas’s law being untenable. Lay aside abortion politics and focus on the baroque procedure specified in the statute, he says in the clip. How can it be that the rights guaranteed to you by the Constitution can’t be directly infringed by the state but can be indirectly curtailed by empowering the public to sue anyone who assists you in exercising your rights? Texas’s law bars the state from taking any action against abortion providers and those who “aid or abet” them but authorizes private actors to sue those same people for each abortion they perform on a fetus that’s older than six weeks. A plaintiff who can prove that the abortion happened will collect $10,000 from the defendants, a financial inducement for pro-lifers to start filing complaints.

Texas’s law was written in this strange way precisely because the legislature knew that if it followed a standard enforcement model in which the state itself prosecutes an abortion provider criminally, the courts would enjoin them from enforcing the law under Roe v. Wade and Planned Parenthood v. Casey. Texas wanted the statute to take effect and figured a novel decentralized enforcement mechanism would make the Court think twice about enjoining it, at least before any actual private lawsuits had been filed. And it worked. SCOTUS declined to block the statute when asked because there were no legal challenges to it that were ripe. The state of Texas wasn’t a proper defendant because there’s no role for the state under the statute.


By letting the law take effect, the Court is going to deter some abortions. That’s a good thing on the merits but hard to square with Casey’s holding barring states from placing an “undue burden” on a woman’s right to abort.

The law, known as S.B. 8, bans abortions after six weeks of pregnancy. That is often before women realize they are pregnant and could effectively ban 85% to 90% of abortions, abortion rights campaigners said…

The mere threat of litigation has prompted abortion clinics in Texas to immediately limit their abortion services in compliance with the law

One risky way abortion providers could seek to challenge the law is to continue to provide abortions after six weeks, thereby inviting a lawsuit, said Vikram Amar, a professor at the University of Illinois College of Law.

Then, they could argue that the law is unconstitutional and “hope that a state court decides to follow existing Supreme Court precedent and declare the state law invalid,” he added.

Right, the obvious way for the Court to reach the merits of Texas’s procedural scheme (and maybe ultimately the merits of Roe and Casey) is for some abortion provider to get sued and then challenge the statute. But for the moment, with the statute now in effect, some women will discover they’re pregnant after their sixth week and then further discover that they can’t find a provider willing to perform an abortion for them for fear of civil liability. So long as Casey remains good law, which it is for the moment, the deterrent effect on providers created by this dubious enforcement scheme would seem to amount to an “undue burden” on abortion rights. In which case, why didn’t the Court enjoin civil litigation under the statute until it considers the merits?


Or is there simply no way for anyone to gain standing unless and until a provider is sued under it? One would think pro-choicers in Texas would have recruited a sympathetic plaintiff to file a complaint over an abortion purely for the purpose of putting the matter properly before the Court.

Anyway, it’s easy to see why this private-lawsuit enforcement scheme is a nightmare in the making. Damon Root:

Conservatives should be just as outraged by this legal ruse as liberals are. After all, if the Texas scheme actually succeeds in the long run, what’s to stop an anti-gun state legislature from banning handguns in the home, in clear violation of SCOTUS precedent, and then placing state officials beyond the reach of federal judicial review by outsourcing the ban’s enforcement to an army of private-sector gun control activists? Most gun shops would probably go bankrupt overnight when faced with the wave of private-sector civil suits that such a state law would unleash. Is that the future that conservatives want?

What if Congress passed a scheme allowing anyone to sue the Internet service provider of any conservative website that criticizes Joe Biden? Is that a First Amendment violation?

Of course it is. The state would be deputizing motivated actors to do its rights-infringing dirty work for it via litigation. The Wall Street Journal is also unimpressed with Texas’s law, regarding it as an instruction manual for civil disunion inasmuch as it would pit citizens against each other in court but also potentially a major political liability:


The law sets an awful precedent that conservatives should hate. Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?…

Texas Republicans have handed Democrats a political grenade to hurt the anti-abortion cause. Pro-life groups have spent nearly 50 years arguing that abortion is a political question to be settled in the states by public debate. Yet now in Texas they want to use the courts via civil litigation to limit abortion…

Sometimes we wonder if Texas Attorney General Ken Paxton is a progressive plant. His ill-conceived legal attack against ObamaCare backfired on Republicans in last year’s election and lost at the Supreme Court. Now he and his Texas mates are leading with their chins on abortion. How about thinking first?

Some have compared Texas’s scheme to the Biden White House’s habit of whispering to Facebook to do more to ban anti-vax disinformation on its site. That was a case of the government trying to get a highly influential private company to censor speech which the government itself couldn’t lawfully censor, morally not that different from what Texas is up to. But the degree of coercion is different. Texas has used its legislative power to create a formal financial penalty for abortion providers if they’re successfully sued under the new law. The Biden White House shouldn’t be lobbying a private actor to censor anyone, knowing that government “lobbying” always carries the hint of a threat, but it didn’t use formal state power to bend Facebook to its will.


And in any case, if you agree that the White House shouldn’t be offering Facebook suggestions on whom to ban, you should agree that Texas shouldn’t be creating new torts as a privatized end-around the Court’s abortion jurisprudence. At least not until the Supremes finally dump Casey.

If you’re wondering what precedent they might eventually use to strike down Texas’s law, by the way, consider the strange case of Shelley v. Kraemer. In that ruling the Court held that private actors don’t violate the Constitution when they enter into real estate contracts that explicitly bar blacks from future ownership. They’re private actors, after all. How could they? But if they try to have those contracts enforced in a court of law, that’s a different ballgame. The court is an arm of the government — a state actor — and the Equal Protection Clause does bar state actors from engaging in discrimination, SCOTUS held. That ruling is strange because, if you take it seriously, every contract in America is ultimately a matter of state action and thus should also be bound by constitutional rules. A contract is only as good as a court’s ability to enforce it, right? (E.g., does it violate the First Amendment for a court to enforce a nondisclosure agreement?) The Texas law could be struck down with the same tortured logic. The legislature and executive might not be guilty of violating a woman’s right to choose under the new law but the courts would be guilty of violating the “undue burden” standard if they held trials under the statute and entered judgments against abortion providers. We’ll see.


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