SMU Law Review Forum

Texas, Abortion, and State Action

Abstract

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday citizens, thereby allowing the law’s defenders to argue that the law does not trigger constitutional protections.

This short article argues that the courts should have little trouble concluding that this law and its unusual enforcement mechanism amount to state action, meaning this law is subject to normal constitutional scrutiny. The Supreme Court’s decisions in Shelley v. Kraemer, Edmonson v. Leesville Concrete Co., and Terry v. Adams make clear that private parties can be considered state actors, especially when they are working with the express approval of the government and when the courts are required to hand down rulings that seemingly infringe on well-settled constitutional protections. These decisions, among others, show that the private-citizen plaintiffs deputized under this new Texas law must be treated as state actors who are subject to constitutional limitations.