Civil Law's Potential to Protect Reproductive Privacy
Abstract
State legislators have been adding civil remedy provisions to antiabortion legislation, most recently civil bounty laws like Texas’ “heartbeat” bill, Senate Bill 8 (SB8), which allows private citizens to sue for $10,000 damages any person who provides or aids and abets an abortion in violation of the six-week ban. Each of the laws is designed to shift enforcement of abortion restrictions from the state to private individuals. While private civil remedy laws allow any person to sue an individual who performs or aids and abets the abortion, none of the laws currently allows suits against the abortion patient herself. Although these laws nominally regulate abortion providers and third parties, it is the pregnant person seeking abortion who will be subjected to surveillance and invasions of privacy by individuals seeking to enforce the civil remedy laws. In short, bounty statutes incentivize individuals seeking to recover rewards to engage in private surveillance and publication of private medical facts. These laws lay bare what has long been fact: that pregnancy renders a person a legal subject to be surveilled, regulated, and disciplined by the state and the community. In addition, anti-abortion protestors, emboldened by the overturn of Roe v. Wade, are targeting clinics outside their home states. The combination of bounty-hunters and protestors spilling over from states hostile to abortion into states that provide reproductive care can dramatically chill the exercise of rights in states where abortion is still legal.
Pro-choice proponents need to do more than just play defense and this Article lays out an agenda for doing so. The Article examines tort law and civil statutes that may combat the privacy invasions that will necessarily result from the regime of private enforcement. It draws on innovations from the civil rights movement, which has a storied history of bringing tort suits to quell discriminatory conduct. While the Constitution protects citizens from abuse and overreach by the state, it is tort law’s function to protect against actions by individuals and corporations that violate a person’s privacy, bodily autonomy, and dignity. Thus, tort law and civil privacy protections may guard against a legislative policy agenda that deputizes private citizens to enforce state legislative goals.