{"id":327740,"date":"2025-03-15T09:37:53","date_gmt":"2025-03-15T14:37:53","guid":{"rendered":"https:\/\/www.liveaction.org\/news\/?p=327740"},"modified":"2025-03-13T22:42:11","modified_gmt":"2025-03-14T03:42:11","slug":"far-reaching-impact-private-right-action-abortion","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/far-reaching-impact-private-right-action-abortion\/","title":{"rendered":"The far-reaching impact of a ‘private right of action’ to stop the killing of preborn humans"},"content":{"rendered":"
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Disclaimer: Opinions expressed in this guest post are solely those of the guest author. <\/i>\u00a0<\/b><\/p>\n

The gutsy little town of Waskom (pop. 2,190) in far East Texas decided on June 11, 2019, to pass a local ordinance prohibiting abortion within its city limits. This ‘Sanctuary City for the Unborn’ (SCFTU) ordinance, as it was dubbed, was crafted by <\/span>Mark Lee Dickson<\/span><\/a>, a director with Right to Life of East Texas; Senator <\/span>Bryan Hughes<\/span><\/a> (SD-1), whose Senate District includes Waskom; and Attorney <\/span>Jonathan Mitchell<\/span><\/a>, the former Solicitor General of the State of Texas. <\/span><\/p>\n

This innovative ordinance actually <\/span>prohibited<\/span><\/i> city officials and local police from enforcing the new law, thereby shielding the City of Waskom from lawsuits. <\/span>Instead, enforcement was left to private citizens who could sue anyone who performed an abortion or assisted someone in obtaining an abortion within the city limits. The ordinance was written this way so that abortion providers would not have standing to sue the city or its agents in federal court.<\/span><\/p>\n

Was this method of enforcement by<\/span> citizens\u2019 \u201cprivate right of action\u201d effective<\/span>? The answer is unequivocally \u201cYes.\u201d<\/span><\/p>\n

As University of California Davis School of Law professor Mary Ziegler explained in her book, “<\/span>Roe: The History of a National Obsession,”<\/span> published by Yale University Press:<\/span><\/p>\n

Generally, federal standing doctrine required not only that someone suffer a real injury at the hands of the defendant but also that a favorable judicial decision could provide some form of redress. When it came to redress, Mitchell and Hughes relied on a 2001 case called <\/span><\/em>Okpalobi v. Foster<\/span>.<\/span><\/em><\/p>\n

Ziegler continued:<\/span><\/p>\n

In 1999, Louisiana had passed a law allowing women to sue abortion providers for injuries to their unborn children. When abortion providers challenged the constitutionality of the law, the Fifth Circuit Court of Appeals concluded that they lacked standing to sue the state because the government and its agents could neither stop private citizens from suing nor block state courts from entertaining suits. <\/span><\/i><\/p>\n

Hughes and Mitchell thought the same argument could apply to Waskom: because the sanctuary city ordinance assigned enforcement to private citizens, the city would have no authority to stop private citizens from suing, and courts would hold that any abortion provider hauling the city into court lacked standing to do so.<\/span><\/i><\/p>\n

‘Actually a very clever ordinance’<\/h3>\n

Waskom was the first, but not the last, city to pass such an ordinance. Soon dozens of cities had passed ordinances outlawing abortion within their city limits. The greatest challenge the movement would face, however, was Lubbock (pop. 264,000) on the high plains of West Texas, where Planned Parenthood had opened a clinic and was actively performing abortions. After Lubbock\u2019s City Council rejected the measure, dedicated residents used the Citizen Initiative Petition provision in their City Charter to force the issue to a citywide vote. The measure passed 62% to 38% on <\/span>May 1, 2021<\/span><\/a> \u2013 making Lubbock the largest Sanctuary City for the Unborn in the State of Texas.\u00a0<\/span><\/p>\n

Josh Blackman, a law professor at South Texas College of Law Houston, told <\/span>The Texan<\/span><\/a> that the crafting of Lubbock\u2019s text had \u201ccomplicated pro-choice retaliation that would otherwise be cut-and-dry.\u201d\u00a0<\/span><\/p>\n

Professor Blackman stated:<\/span><\/p>\n

It\u2019s actually a very clever ordinance, the way they\u2019ve devised it. Usually, the way laws work is the government enforces it. So let\u2019s say the city or county puts a restriction on abortion\u2026. With the usual law, when the government enforces it, Planned Parenthood can bring what\u2019s called a pre-enforcement challenge. It says, “Well, this law hasn\u2019t been enforced yet, but they will enforce it, and when they do enforce it, we\u2019ll have our rights violated. So we can sue now.\u201d\u00a0<\/span><\/i><\/p>\n

This ordinance is different. It specifically says government, the Lubbock government, cannot enforce this law. Cannot. The only people who can enforce this law are private citizens\u2026 <\/span><\/i><\/p>\n

Why is this fact important? It\u2019s almost impossible to do a pre-enforcement challenge when the government\u2019s not enforcing it. In other words, they can sue the government \u2014 which they probably will try to \u2014 and the court will say, \u2018Well, that\u2019s nice, but the government can\u2019t enforce this law, so what are you suing them for?\u2019 <\/span><\/i><\/p>\n

There\u2019s no way for a court to hear the validity of this law until someone actually brings a civil lawsuit.<\/span><\/i><\/p>\n

As Blackman predicted, Planned Parenthood sued the City of Lubbock on May 17, 2021 \u2013 but their lawsuit was short lived. On June 1, 2021, the date the ordinance went into effect, Planned Parenthood complied with the new law and stopped committing abortions in the city. That same day, Judge James Wesley Hendrix issued a 50-page ruling siding with the City of Lubbock. This <\/span>victory<\/span><\/a> marked the first time in history for a pre-viability abortion ban to pass, go into effect, and survive a court challenge under <\/span>Roe v. Wade<\/span><\/i>.\u00a0<\/span><\/p>\n

Writing about the outcome of the case, <\/span>Ziegler wrote: <\/span><\/p>\n

District judge James Wesley Hendrix, whom Donald Trump had nominated in 2019, agreed with Lubbock that federal courts had no jurisdiction to hear the case because abortion providers lacked standing to sue. “Like the defendants in Okpalobi,” Judge Hendrix wrote, “the city and its officials have no authority to prevent a private plaintiff from invoking the ordinance or to tell the state courts what cases they may hear.”<\/span><\/i><\/p>\n