Lawsuits Are the Hitman of the State
What the Heartbeat Act and Hostile Workplace Law Have in Common
Under Roe vs. Wade, state governments could not ban first-trimester abortions, and had limited authority to regulate second-semester abortions. But more than a year before Roe was overturned, Texas legislators deployed an ingenious legal strategy to effectively make abortion illegal. How? By creating a new right to sue. Under the Texas Heartbeat Act, any private party can - once fetal cardiac activity has been detected - sue anyone in Texas who performs or facilitates an abortion.
Whatever you think about abortion, the legal engineering is top-notch. The authors covered a whole lot of bases:
Zero state fingerprints. Not only are the lawsuits private; state officials are explicitly forbidden to enforce the law. When the government does something illegal, you normally sue the government. Under the Heartbeat Act, who do you sue?
Appeal resistance. The Heartbeat Act stipulates that if an injunction blocks the law’s enforcement, you can still be sued for violations if the injunction is later vacated or reversed on appeal. As a result, Texas providers stopped performing abortions as soon as the law passed despite anticipated legal challenges.
Hefty penalties. If convicted, the defendant owes a minimum of $10,000 plus lawyer’s fees plus court costs. While not overwhelming, this cost was clearly overwhelming enough to end legal abortion in Texas.
Normally, the law does not allow us to use subcontracting to break the law. You can’t get away with murder by hiring a hitman. The Heartbeat Act, however, lets the Texas government do precisely this. Anti-abortion lawsuits are the hitman of the state.
When the Heartbeat Act passed, the standard elite reaction was to shudder, “What a horrible innovation.” Even friendly voices fretted, “What if the left starts doing the same thing to us?” To confirm these fears of retaliation, last summer California created a private right to sue gun makers or sellers.
Yet on sober reflection, the Heartbeat Act is deja vu all over again. All levels of American government have been using civil liability to evade Constitutional limits for many decades. Lawsuits are the hitmen they hire to kill the freedoms they cannot legally kill themselves.
Most notably, suppose any level of the U.S. government passed a law forbidding workers to make sexist or racist remarks on the job. Is there any doubt that this law would soon be struck down under the First Amendment? Yet somehow, every employer and every worker in America fears to say anything that even the most hypersensitive co-worker would deem sexist or racist.
How is this monolithic censorship possible in a politically diverse nation? Because every employer is afraid of getting sued for civil rights violation - and every worker is afraid of getting fired for putting his employer at risk of getting sued.
Why are they afraid? Because in 1964 the federal government declared that workers could sue employers for discrimination - then expanded the definition of “discrimination” so broadly that on-the-job First Amendment rights virtually vanished. Under the doctrine of “hostile work environment,” any expression that offends anyone can provoke a lawsuit. And as Texas abortion providers know, even a modest risk of a lawsuit can make abject submission to the will of the legislator the path of prudence.
Is it really fair to compare hostile workplace law with the Heartbeat Act? Verily. One of the key judicial decisions, Davis versus Monsanto, is fairly frank about it:
In essence, while Title VII does not require an employer to fire all "Archie Bunkers" in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.
The government starts with the blatantly illegal goal of banning “bigots from expressing their opinions in a way that abuses or offends their co-workers.” Then instead of respecting those limits, the government’s judicial branch gets creative: “Murder’s illegal? Fine, we’ll hire hitmen instead.” By affirming liability, it dangles piles of cash in front of potential plaintiffs to terrorize employers into banning what the government, legally, must allow.
Once you grasp this chain of causation, stonewalling with “The First Amendment protects individuals from the government, not individuals from other individuals” to defend the status quo is Orwellian indeed. Not because businesses are “the same as governments” or other such nonsense, but because government policy constantly terrorizes businesses into policing the speech of their own employees.
Before you ask, “How can that be when corporate America so aggressively promotes these policies?,” ask yourself, “What would I do if the government were constantly terrorizing me?” A business that loudly declares, “Don’t blame us. The only reason we police employees’ speech is because the government has deputized your crybaby co-workers to sue us unless we censor you” would sharply raise its chance of getting sued! The best defense, sadly, is a woke offense.
If the comparison between the Heartbeat Act and hostile work environment jurisprudence sticks in your craw, I’ll happily grant that the Heartbeat Act is a finer piece of legal engineering. The Heartbeat Act was intelligently designed to evade existing law. Hostile work environment law, in contrast, fitfully evolved out of the civil rights crusade. But in its favor, at least the Heartbeat Act is transparent. Everyone who knows the law knows that Texas legislators adopted it to circumvent Roe. Hardly anyone realizes that the U.S. judiciary concocted hostile workplace law to circumvent the First Amendment.
As a fan of Michael Huemer’s Justice Before the Law, I don’t actually care about legality anyway. Unjust laws are made to be broken, and unjust punishments are made to be evaded. If abortion is morally equivalent to murder, the Heartbeat Act is justified. If speaking offensive words to co-workers is morally equivalent to punching them in the face, hostile workplace law is justified. On the other hand, if government has no moral right to ban abortion, then neither does it have a right to allow private parties to sue people who employ the providers of abortion. And if government has no moral right to ban offense, then neither does it have a right to allow private parties to sue people who employ the givers of offense.
HT: Partly inspired by Hanania’s forthcoming The Origins of Woke. Eye-opening.
I have definitely repeated the line of "private companies can enforce the rules they want." In principle, I still believe that *should* be the case, but it was indeed naive of me to believe that is anywhere close to actual reality today. Thanks for helping me see a little clearer.
Perhaps another situation is similar: tax collection/withholding. This is mainly done by employers. Does anyone believe that this is a matter of "private companies doing what they want?" WDYT?
A very, very thought provoking article. As an extremely ardent pro-life advocate, I do think that the practicality of stopping abortion and saving lives and supporting mothers in crisis is tricky and complicated. But wasn't ending slavery similary tricky and complicated?