Fighting Back

 Legally astute columnist, Jennifer Rubin, offers a path to "chill" Texas abortion access bounty-hunters. TL;DR, there is a law that says if individuals act "under the color" of a State law and deprives another of a constitutional right, they are liable to lawsuits for redress. Bounty-hunters can be counter-sued. 

Section 1983 of Title 42 in the U.S. Code provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” When Texas’s law forces every abortion provider in the state to shut down, surely there is a deprivation of constitutional rights. They have effectively “chilled” women’s constitutional rights.

“In evaluating whether the conduct of an otherwise private actor constitutes indirect state action, courts conventionally have traveled a trio of analytic avenues, deeming a private entity to have become a state actor if (1) it assumes a traditional public function when it undertakes to perform the challenged conduct, or (2) an elaborate financial or regulatory nexus ties the challenged conduct to the State, or (3) a symbiotic relationship exists between the private entity and the State.” Moreover, when the state and individual actors’ conduct amounts to “pervasive entwinement,” the private individual can be a state actor. 

The interplay between Texas officials and private actors is intricately choreographed for the express purpose of letting the state get away with something it could not do directly. This screams out for a remedy to break up this unsavory alliance of anti-choice bounty hunters and the state.

To be clear, a Section 1983 case requires a high level of intermingling state and private actions. The degree of collaboration required against private actors in 1983 cases may not exist in this situation. Ironically, simply announcing the intention to file 1983 suits against bounty hunters might be enough to stop — or to borrow a phrase, chill — the whole charade. Certainly, anyone sued under the bounty-hunting statute could raise the defense that the law in unconstitutional. What Section 1983 does is provide an offensive weapon to discourage such suits and ensure that bounty hunters pay a price for attempting to interfere with women’s constitutional rights.