The Bill of Rights offers vital protections to Americans. That set of amendments to the U.S. Constitution guarantees multiple liberties of individuals by walling off people’s private actions from government interference. Although our society needs a responsibly empowered government, it’s just as important to limit government’s authority to encroach into people’s private lives.
The new anti-abortion law in Texas raises major concern in this regard because it empowers — and, indeed, incentivizes — people to enforce the law by suing anyone involved in an abortion other than the patient. The law prohibits abortions once medical professionals can detect cardiac activity, usually at about six weeks and before many women know that they’re pregnant. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.
Nebraskans have differing, deeply held views on abortion, but on the question of safeguarding personal liberty, everyone should be in agreement that government — whether acting directly as the agent or empowering private citizens for enforcement — must tread carefully. After all, Texas lawmakers made citizens the enforcement apparatus because assigning that power to the state would have run afoul of court precedents and the law would likely have been ruled unconstitutional.
The five members of the U.S. Supreme Court who declined to halt the law last week emphasized that they were not ruling on the law’s constitutionality.
Making private citizens the agents of law enforcement is a troubling principle — and one that could apply to countless public issues beyond abortion. Assigning such authority to individuals has enormous potential for abuse of such power. People could sue for motives that are far from noble, such as personal retribution. Complete strangers could file legal action against individuals. Lawsuits based on frivolous grounds could further gum up busy courts.
Nebraska’s legislative experience makes clear that no matter how deeply lawmakers and citizens support a piece of legislation, it still must pass constitutional muster. In 2010, the Legislature passed a wide-ranging bill by then-State Sen. Cap Dierks setting a variety of limits on abortion. The Legislation had enthusiastic support among lawmakers and passed overwhelmingly into law. Yet, when a lawsuit was filed soon afterward, the new law abruptly ran aground in U.S. District Court, which issued an injunction blocking the law from taking effect.
Then-Attorney General Jon Bruning, a conservative Republican, announced that he would not appeal the court ruling. Indeed, Bruning joined with the entity that sued to block the law, Planned Parenthood of the Heartland, in signing a joint request that the law be permanently blocked from going into effect because it was unconstitutionally vague, violated physicians’ right to free speech and placed almost insurmountable barriers against women seeking abortions. It was not in the state’s interest to devote its resources to defending a law so likely to be blocked permanently in court due to the multiple constitutional concerns, Bruning said.
Gov. Pete Ricketts last week expressed support for the Texas law and encouraged introduction of legislation in the same spirit here. But the sound course for Nebraska is to wait on the U.S. Supreme Court’s upcoming ruling on a Mississippi anti-abortion law, to see the specific approach taken by the current court. Nebraska in 2010 wasted time and energy on legislation that quickly ran aground in the courts. State lawmakers should learn from that experience and not needlessly repeat that lawmaking mistake.
Assigning such authority to individuals has enormous potential for abuse of such power.