The harsh restriction on abortion rights just adopted by the Texas state legislature has a curious feature: the ban on abortions after six weeks cannot be enforced by state officials; the police are barred from acting. Enforcement is put into the hands of ordinary citizens—the Texas equivalent of you and me. If any citizen learns of someone involved in or complicit in an illegal abortion, he or she can sue that person. Or, more likely, they can report the offender to one of the civil society organizations that oppose abortion, and its officers will collect the reports and file the suits. The state isn’t involved, and that supposedly means that the law does not violate Roe v. Wade—which, Texans claim, only prohibits state action against abortion, not private action. I doubt that the subterfuge will stand, despite the Supreme Court’s initial refusal to call it out. But there is more to say.
The Texas maneuver should be of interest to those leftists who call themselves abolitionists and want to make the police disappear. Here is an experiment in doing just that, though only for a small part of the full range of police activity. Civil suits will result in civil penalties, which not only means no police engagement but also no jail time for the violators of the law—another idea for leftists to play with. The most common proposal of the abolitionists is to replace the police with neighborhood committees—groups of citizens, you and me again, who would enforce the law through community surveillance, civil admonition, obligatory counselling, and public shaming, and never with incarceration. What we have in Texas is not a neighborhood committee but a general recruitment of neighbors, who are invited to go to court, but not criminal court, to enforce the law.
President Biden denounced this as “vigilante” justice, which sounds right. But I suspect that our abolitionists have something in mind close enough to the Texas law to merit a similar description. And so we should pay attention to how citizen activists in Texas watch their neighbors and one another—how they spot a young woman, say, whose belly isn’t as round as it was a week ago and report her to the local anti-abortionists, who take her to court. It is important to know how many neighbors are likely to do something like that.
The abolitionists that I have read or listened to would surely disapprove of that kind of behavior—but only because they don’t like the law. What about a law that they, or some of them, do like? What if one of my neighbors reported to the local neighborhood committee that I wasn’t separating paper and plastic in the recycling cans? Or that he had spotted me driving too fast in a 25 mph zone, or that she was disturbed by my kids’ loud music and noisy partying? All that might be ok, not with me but with the abolitionists. But I worry that my neighbors won’t stop with offenses like those. The Texas law suggests what is more likely. They will report me for supporting abortion, or for having suspicious visitors, or voicing politically incorrect opinions, or violating a ban on demonstrations or the curfew that supports the ban, or helping to provide asylum for illegal immigrants. The problem with vigilante justice is that it isn’t the nicest people who will become vigilantes. It will be the local busybodies, the zealots, the overly conscientious—the men and women who feel empowered by laws like the Texas law and who probably believe that the police were never sufficiently engaged on issues like abortion.
The Texas experiment may not last long. I hope it doesn’t. But we should study it and think hard about what we want our neighbors to spend their time doing. Arguing, voting, marching, organizing, yes; spying on one another, reporting on my activity and yours, no.