Privatizing Bans on Abortion: Eviscerating Constitutional Rights through Tort Remedies

Abstract:     
State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign immunity bar judicial review of any privately enforced tort legislation. These courts have refused to recognize that this new breed of tort statute attempts to "privatize" the government's restriction of constitutional rights. States have taken a law that would clearly be unconstitutional were it properly treated as "public" law, and immunized it as "private" tort law. Courts have refused to disallow this manipulation of the public/private distinction embedded in our system of law. This Article proposes a novel method for analyzing tort legislation that violates fundamental rights. It provides a framework for understanding how state legislatures are attempting to privatize governmental regulation. It then proposes a new solution that satisfies the requirements for federal court jurisdiction, but also ensures that state legislatures do not cloak deprivations of fundamental rights under the veil of private rights of action.

Keywords: abortion, constitutional rights, tort laws, federal courts, standing, sovereign immunity, gender, women

JEL Classifications: K1, K3

Accepted Paper Series