Opinion | One tactic to stop abortion bounty hunters from demolishing women's constitutional rights - The Washington Post

When thinking about Texas’s nefarious scheme to deprive women of their constitutional right to seek an abortion, I am reminded of the tactics White segregationists used in the years following the Brown v. Board of Education decision. The 1954 ruling prohibited schools from segregating students, so some parents created all White “academies.” Some states threatened to close public schools for everyone. Blocked from keeping Black students in substandard schools, they sought other means to do the unconstitutional activity.

In the case of Texas’s antiabortion law, state lawmakers know that Roe v. Wade remains the law of the land, establishing a woman’s right under the 14th Amendment to control her own reproduction. So they came up with the idea to enlist private citizens to rat out women exercising their constitutional rights. They offered these people a bounty of $10,000. Think of them as hiring every Texas resident (and residents outside the state!) on a contract basis to make abortion services virtually impossible to obtain.

There are many avenues the federal government can do to protect Texas woman. For example, Section 1983 of Title 42 in the U.S. Code provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” When Texas’s law forces every abortion provider in the state to shut down, surely there is a deprivation of constitutional rights. They have effectively “chilled” women’s constitutional rights.

What about “under color of any statute”? Does that not limit Section 1983 to so-called state actors? In fact, there is a well-developed body of law that says private individuals acting in concert with state actors can be sued. The “under color” phrase does not require that the accused be a public official. That person only needs to be engaged in “in joint activity with the state or its agents.”

In a 1988 case, West v. Atkins, the Supreme Court held, “The traditional definition of acting under color of state law requires that the defendant in a [Section] 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ”

A slew of lower court cases have enshrined this principle. A Massachusetts district court case in 2006, for example, explained: “In evaluating whether the conduct of an otherwise private actor constitutes indirect state action, courts conventionally have traveled a trio of analytic avenues, deeming a private entity to have become a state actor if (1) it assumes a traditional public function when it undertakes to perform the challenged conduct, or (2) an elaborate financial or regulatory nexus ties the challenged conduct to the State, or (3) a symbiotic relationship exists between the private entity and the State.” Moreover, when the state and individual actors’ conduct amounts to “pervasive entwinement,” the private individual can be a state actor.

In the case of Texas’s law, the legislature created the right to pursue claims against people who seek an abortion specifically because state actors could not enforce their strict abortion restrictions without running afoul of the Constitution. Justice Sonia Sotomayor explained in her dissent last week:

The [Texas] Legislature took the extraordinary step of enlisting private citizens to do what the State could not. The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. . . . Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. . . . In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.

The interplay between Texas officials and private actors is intricately choreographed for the express purpose of letting the state get away with something it could not do directly. This screams out for a remedy to break up this unsavory alliance of anti-choice bounty hunters and the state.

To be clear, a Section 1983 case requires a high level of intermingling state and private actions. The degree of collaboration required against private actors in 1983 cases may not exist in this situation. Ironically, simply announcing the intention to file 1983 suits against bounty hunters might be enough to stop- or to borrow a phrase, chill - the whole charade.

That said, the Texas statute breaks new legal ground, and women’s rights defenders must be creative and bold in their counterattack. Any and all viable strategies should be tried.

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Opinion | One tactic to stop abortion bounty hunters from demolishing women's constitutional rights - The Washington Post
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