Conservatives used to hate frivolous lawsuits. Now, Texas abortion law invites them

Conservatives are generally wary of novelty, understanding humanity’s demonstrated inability to anticipate unintended consequences.

As the name implies, the idea is to “conserve” the tested ways that work and the standards we’ve developed. Drill down to the specifics of governing, and one of the essential building blocks has been that the judiciary should not do what the legislature, the direct representative of the people, is meant to do.

That’s one reason Texas’ new abortion law became the subject of much national angst when it took effect Wednesday and the U.S. Supreme Court declined to block it. Its enforcement mechanism — civil suits against abortion doctors, clinics or anyone else who helps a woman obtain an abortion after a fetal heartbeat can be detected — is explicitly designed as an end-run around Roe vs. Wade. State officials such as the governor and attorney general are not involved in enforcing the ban. Individuals (or, more likely, organized anti-abortion groups) are empowered.

This is outsourcing, another Texas Republican priority, run amok. If allowed to stand, it will spark all sorts of copycat efforts to curtail rights. Imagine a New York law that bars AR-15s and allows individuals to sue gun owners into compliance. Or a California statute compelling college students to declare their pronouns, with costly civil penalties when they lose in court.

Many on the right will argue that free speech and gun ownership are written into the Constitution, while abortion rights were generated by a court ruling. But our constitutional system — the thing we should all be working to conserve — currently recognizes abortion as a right in certain circumstances, and the Texas law violates that. Taking enforcement out of the hands of the state doesn’t change the heart of the matter.

Proponents also point to similar enforcement provisions in the law, such as for Medicaid fraud. Introducing such mechanisms on individual rights, though, would open up a dangerous new realm.

Another key policy point for conservatives for decades has been tort reform. Every time a company relocated to Texas or someone declared the state the best place to do business, Gov. Greg Abbott (and his predecessor, Gov. Rick Perry) touted the state’s sane civil court rules against frivolous lawsuits.

The abortion law encourages people to bring cases in which they have no role whatsoever. Frivolous is a good word for that.

If you’re harmed by a doctor, Texas law strictly limits the damages you can collect and makes even bringing a case difficult. When Republicans won control of the Legislature for the first time in a century, it was one of the first policies they pursued. Less than two decades later, they’re throwing the courthouse doors wide open to people with no standing in the cases they seek to bring.

The sudden hyperventilating about the law around the country has been overdone. The Supreme Court’s decision to let the law take effect wasn’t necessarily an endorsement of its methods. There will be legal challenges, and they will be strong.

The justices might want to let case law develop on such a novel approach before jumping in. Or they may be looking ahead to their coming ruling in a Mississippi case that directly challenges Roe vs. Wade. The anguished cry to blow up the Senate and remake the Supreme Court every time the left sees a policy goal deferred damages our institutions in its own way, too.

If the court overturns the Roe precedent, abortion-rights activists will have to do a better job, state by state, of winning the debate instead of winning court cases. Republicans will have to drop their newfound legal cleverness and openly adopt the policies they want. Both will have to bear the political costs.

And voters will have to decide whether they want their elected officials to push the law to one extreme or the other or to find a middle ground.

This story was originally published September 2, 2021 at 12:56 PM.