When the Texas Legislature passed the Texas Heartbeat Act in 2021, it was a game-changer for the pro-life movement. It was one of the few attempts by the state, beforeDobbsconfirmed by the Supreme Court as a brake on abortion – precisely because of its innovative legal approach.
Unlike restrictions in other states, where the government would intervene directly to stop an abortion, texas law took a hands-off approach that took the state out of the equation. It created a private right of civil action against doctors and clinics, allowing individual citizens to sue them for abortions – a minimum of $10,000 per baby – after a heartbeat is detected. Importantly, he also barred the state from bringing civil suits under this law. This strategically prevented the government from “violating” the rights supposedly granted under deer or Casey, which would have raised constitutional questions about the power of the state. Instead, the law simply “strengthened” citizens’ civil rights to sue, with practical effect that would tire abortion providers with litigation to the point of bankrupting them.
This legal novelty is now shaking up the conservative movement across the country by advancing constitutional rights while simultaneously limiting the role of government. No fewer than six other states have pledged to take the same approach, with Oklahoma passing an identical law last month. With the Fifth Circuit substantially upholding the Texas law and rejecting all challenges, the approach has stood up to legal scrutiny. Even before the Dobbs decision is formally made, abortion could be made impossible in conservative states across the country, guaranteeing the survival of thousands of unborn children.
It’s not just abortion, however. On a range of thorny legal issues, the “civil remedy” approach holds promise for advancing conservative priorities in accordance with judicial review. On Tuesday, that promise paid off as Texas picked up another win on the Fifth Circuit, which temporarily confirmed HB 20, a Texas law targeted at Twitter and Facebook that prevents Big Tech companies with more than 50 million monthly users from censoring lawful speech. Like the Heartbeat Act, it created a private right for users to sue companies, with financial charges that will force the return of deleted content. While the ruling is only an injunction, for now it effectively undermines Section 230 of the Telecommunications and Decency Act, which previously granted companies legal immunity for removed content. Repeal of Section 230 has become a goal for many conservatives. The “civil remedy” approach is also being considered to ensure gun rights and protect free speech on college campuses.
Good. Good riddance to section 230, deer, Casey, and other laws that now protect the most flagrant abuses of constitutional rights. They will be emasculated through the civil remedy, a creative and constitutional remedy, and should be adopted nationwide to cement conservative priorities in the states. Although Democrats now use the same approach for their own designs – for example, California Governor Gavin Newsom, who has promised to use the civil remedies approach to ban assault weapons – consistency has never been a defense against them, anyway. The cat is now out of the sack and they will have to be defeated at the polls. Wherever possible, however, Republicans must use good judgment in defending constitutional rights against a dumb but shrewd left that wants to take them away. It’s a strategy. Let the Lone Star be our guide.