The Lone Star State conjures images of the Old West, such as rugged individualism and frontier justice.  So, it’s not surprising the opponents to Texas’ new pro-life law, the Texas Heartbeat Act, characterize the statute as an example of vigilantism.  Like bounty hunters, the law permits any Texan to earn at least $10,000 and court costs by successfully suing any person or organization that provides or assists an abortion after the detection of “cardiac motion” by ultrasound examination.  A fetal heartbeat is usually detected around the sixth week of pregnancy.  Private citizens growing rich by snitching?  This is outrageous!  Un-American! Unconstitutional!  Or is it?

Private civil enforcement actions (“PCEAs”), the legal term for this type of vigilantism, have a long history in the U.S.  PCEAs have become the go-to option for laws that enforce civil rights, employment norms, consumer product safety and environmental standards at the federal and state level.  PCEAs are used against organized crime under the Racketeer Influence and Corrupt Organizations Act or RICO.  PCEAs have been held constitutional by the U.S. Supreme Court and under state law by many state supreme courts.  It is hard to see how the Texas Heartbeat Act’s PCEAs violates the Constitution without holding unconstitutional the PCEAs permitted under most civil rights, employment, product safety, and environmental statutes.

Moreover, nearly all PCEAs permit a successful plaintiff to receive damages in excess of the plaintiff’s actual damages.  For example, some PCEAs permit the recovery of court costs, punitive damages and, in the case of RICO, treble damages.  The U.S. Supreme Court has held damages in excess of the actual harm to the plaintiff are constitutional.  On its face, the Texas Heartbeat Act’s granting successful plaintiffs a $10,000 “bounty” and court costs seems constitutionally permissible.  Otherwise, nearly all non-economic and punitive damages under other PCEAs are at risk of being unconstitutional.

It’s important to remember that states have broad discretion on who has standing to sue in state courts, provided standing is not based on a discriminatory standard, such as race, religion, or gender.  There is nothing inherently unconstitutional in allowing successful plaintiffs compensation in excess of the damages the plaintiffs actually suffered.  For over 50 years, PCEAs have been increasingly used to enforce federal and state laws, particularly in civil rights, employment conditions and environmental standards.  Rather than “vigilantism,” the Texas Heartbeat Act follows a long American tradition of private enforcement of public laws. 

Image: National Park Service

To comment, you can find the MeWe post for this article here.