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No, the Texas Abortion Law’s Enforcement Mechanism Isn’t Unprecedented

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(utah778/Getty Images) It repurposes a legal tactic that progressives have been using to great effect for a century.

Last week, the Supreme Court decided not to stop a Texas abortion law from coming into effect on the grounds that the abortionists who filed the lawsuit had sued the wrong defendants: The law confers upon private citizens the exclusive power to sue people who perform or procure abortions, and the Court ruled that it was “unclear whether the named defendants in [the abortionists’] lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

Allies of the abortion industry reacted as anyone could have predicted, tweeting as if the sky were falling and fretting about the rule of law. Perhaps more surprising was the reaction of many lawyers who are not obvious allies of the abortion industry. In a dissent, Chief Justice John Roberts, a George W. Bush appointee, characterized the Texas law as “not only unusual, but unprecedented.” Other constitutional conservatives worried that the Texas law would set a bad precedent that the Left would exploit.

The truth is that the Texas law is not unprecedented, and concerns that it will create a new and potent legal tactic through which progressive activists can deprive fellow citizens of fundamental and constitutional rights are misplaced: Progressives have been using the legal tactic in question to precisely that end for a century.

To see why constitutional conservatives might be concerned, it helps to understand why American law disfavors private prosecutions of public wrongs. The general rule is derived from two foundational principles.

The first principle is that private wrongs infringe private rights, while public wrongs — what we call crimes and misdemeanors — violate public rights, which is to say, rights belonging to the people as a whole. Private rights do not belong to the public, and public rights belong to no individual person.

The second principle is that only the person whose right has been infringed may take the wrongdoer to court. Only the public, acting through its

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