The New Abortion Vigilantism

Recently the US Supreme Court temporarily let stand Texas’s antiabortion law, SB 8, which rewards any person a minimum of $10,000 for suing abortion providers or those who aid or abet the performance of an abortion after roughly the sixth week of pregnancy, before many people know they are pregnant. The first bounty-seeker, a felon from Arkansas, has now sued a San Antonio doctor who admitted to violating the law (a second suit, filed by a man in Chicago, seeks to challenge the constitutionality of the law).

The story of the bounty bill, which represents a new chapter in conflicts over abortion rights, begins with Mark Lee Dixon, a millennial pastor who ministered to a small congregation in Longview, Texas. Texas had already enacted dozens of incremental restrictions on abortion, but Dixon increasingly felt that waiting on the Supreme Court to overrule Roe v. Wade was a fool’s errand. In 2019, Dixon went to the tiny town of Waskom, Texas, and persuaded the mayor and city council to ban abortion within their jurisdiction. The problem—aside from the fact that Waskom did not even have a clinic—was that Dixon’s plan violated the Constitution, which protects a right to choose abortion until fetal viability, and exposed the city council to liability. He texted his state senator, Bryan Hughes, for advice, and Hughes consulted with Jonathan Mitchell, a former solicitor general for Texas.

Hughes and Mitchell had an elegant if troubling solution: city officials would not have to enforce anything. Private citizens would be asked to do the job. From Waskom, the novel idea of an antiabortion “sanctuary city for life” spread through the state and across state lines. On September 1, with the signing of SB 8, it became the law of Texas, then national news.

Although the bounty law is novel and thus far unique to Texas, similar civil enforcement regimes have a much darker and more complex history. At least at first blush, Texas’s legal regime resembles past efforts to privatize enforcement of constitutional values and important social policies—such as civil rights laws that allow citizens to sue government officials, and anti-fraud statutes that allow citizens to profit personally from identifying corruption or waste. But in Texas, the bounty law serves to mediate differences among the more militant and mainstream factions of the antiabortion movement. While the bounty represents an effort to repurpose older legal mechanisms for conservative ends, it is also reminiscent of more troubling efforts to privatize enforcement of state law.

Since the 1970s, antiabortion groups like Operation Rescue have denounced what they see as the inefficiency and cowardice of relying on legislation and judicial appointments to create social change. These activists have picketed clinics, bombed facilities, and vandalized property. In the 1990s, the actions of extremists such as Michael Griffin, who shot a doctor in the back in a parking lot, and Paul Hill, who murdered a doctor and went to the execution chamber repeating that “one should do unto others as others do unto you,” came to haunt American abortion politics and damage the image of the antiabortion movement. Members of Operation Rescue—the defining force of the movement in the 1980s and 1990s—did not openly espouse violence but used aggressive blockading tactics at clinics across the United States and proudly recorded thousands of arrests (some within Operation Rescue, like Jayne Bray, the wife of a clinic bomber, did consider violence to be justified).

In 1994, Congress passed the Freedom of Access to Clinic Entrances Act, imposing tough penalties on those who use force or civil disobedience to prevent patients and doctors from entering abortion clinics. Operation Rescue became a shell of itself as voters recoiled against such tactics and legal penalties piled up, but the allure of banning abortion altogether didn’t fade away. In the past decade, a new generation of absolutists has begun to describe themselves as abolitionists—inviting comparisons to the radical antislavery activists of the eighteenth and nineteenth centuries—and argue that the time to end all abortions is now. “When you call yourself ‘pro-life’ you are letting people know what you think about abortion,” one abolitionist site explains. “When you call yourself an abolitionist, you are telling them what you aim to do about it.” The militancy of some abolitionists, however, has complicated the efforts of the establishment wing of the antiabortion movement, which relies on judges and politicians to change the law.

In 2019, bills effectively criminalizing abortion after six weeks, when the embryo exhibits “cardiac activity,” swept across parts of the South and Midwest. As extreme as these bills seemed, they were only half measures, intended to win over some abolitionists and hold up in court. In Texas, a six-week ban ultimately satisfied neither the incrementalists, who worried about expensive legal losses, nor the abolitionists, who rejected the possibility of tolerating a single legal abortion.

It was at this time that Dixon, Hughes, and Mitchell began to explore how a statewide bounty bill could accomplish what a six-week ban had failed to do: serve as a bridge between the movement’s populist wing and the elite lawyers who hope to convince the Supreme Court to reverse Roe v. Wade. But Mitchell and Hughes knew that their project was compromised by Supreme Court precedent, a constitutional right of personal autonomy and equality under the law that for now must be respected.

Perhaps a bounty bill could solve that problem, too. Hughes and Mitchell drew from their previous work on the so-called Save Chick-fil-A law, which made national headlines in 2020. Both men were appalled that the company had been disqualified as a vendor in San Antonio’s airport because Chick-fil-A’s owners had donated to charities with a record of anti-LGBTIQ+ positions. Hughes and Mitchell drafted a bill that banned the government from taking “adverse action” against anyone in the state based on the person’s membership, affiliation, or donation to a religious organization. But Hughes did not trust the government to enforce his bill; after all, it was progressive city officials who had excluded Chick-fil-A. Instead, to enforce the Save Chick-fil-A law, anyone threatened with a violation was authorized to run to court and, if they won, have their legal fees paid.

So Hughes and Mitchell conceived a statewide bounty bill on abortion that could also circumvent progressive members of government. In 2019, prosecutors in predominantly Democratic cities announced they would not enforce laws they felt violated Roe. But under a bounty bill’s enforcement model, citizens could step into the breach.

This move took advantage of judge-made rules that limit when people can sue to stop unconstitutional conduct, because Texas could argue that no state officials were involved in enforcing the ban. The Supreme Court bought this argument when five justices let the law go into effect. Now, out-of-state bounty hunters have begun to flock to Texas courts, just as many experts feared.

The virtues of a bounty bill went further, from Hughes’s and Mitchell’s point of view. It could provide an enforcement mechanism badly needed by a sprawling jurisdiction that lacked the resources or know-how to identify every person who crossed state lines for an abortion or purchased abortifacient medication online. The general legal problem is a familiar one: How to come up with an effective regime of deterrence?

When they came to the bounty provision, Hughes and Mitchell wanted the figure to be as high as possible: the greater the dollar amount, the more people would sue, and the more abortions would be prevented. The bounties would fund antiabortion activism even as they threatened to bankrupt those involved in providing abortion services or helping someone obtain an illegal abortion. Not only would plaintiffs who prevailed get a cut of the winnings, but their attorney’s fees—which could easily balloon into hundreds of thousands of dollars—would be paid by the defendants who lost. Those who were sued, on the other hand, would always have to pay their own lawyer’s fees. 

With a bounty bill, grassroots activists could effectively ban abortion without directly attacking patients, by targeting instead abortion providers and the network of organizations and volunteers that helps people terminate their pregnancies. Abolitionists who wanted to take matters into their own hands could not only now do so, but also collect a reward for their trouble, all while movement attorneys racked up wins in court. For mainstream conservatives reluctant to endorse vigilante violence, bounty hunting would allow them to keep their hands clean and claim they were obeying the Constitution. 

Movement leaders have reason to hope the law will be upheld, copied, and ultimately even come to be seen as mainstream. And this brings us to why Texas legislators think the bounty provision is legally plausible. Throughout American history, there have been many efforts to privatize enforcement of constitutional principles or important social prerogatives, from the use of qui tam statutes in common law to the passage of the Ku Klux Klan Act in 1871. Judge Jerome Frank famously coined a phrase for this deputization: citizens are acting as “private attorneys general.”

One of the earliest such provisions in England in 695 AD awarded a man who informed against another for breaking the Sabbath half of the violator’s fine and any profits from work performed on the day of rest. Opponents of abortion seek to step into this same tradition of the informant suing “on behalf of the king” by means of citizen-driven lawsuits. Similarly, the federal False Claims Act, enacted during the Civil War, rewards whistleblowers who allege fraud against the government with a portion of the damages recovered in a lawsuit. In such cases, there is a clear progressive goal—to deter corruption—but here, too, the litigant’s only connection to the object of the lawsuit is a notion of the public interest served by suing.

Somewhat ironically, the fee-shifting provision in the Texas law also mirrors that found in civil rights statutes. It has proved incredibly valuable in attracting citizens willing to assert their rights, building a stable of experienced cause lawyers, and pressuring defendants to settle cases and agree to alter their behavior. Texas hopes to wring similar gains from the scheme for its antiabortion policy.

Despite Texas’s resort to privatization, a collision between the state law and individual rights can’t be avoided entirely. Texas has empowered a citizen to sue a third party in order to vindicate the state’s public policy, rather than because of his or her own personal stake in an abortion or on behalf of the fetus (which does not enjoy constitutional rights). The legal regime doesn’t work through private action alone, but through a combination of law on the books, private informing and surveillance, and law in the courtroom. Bounty laws might obscure the role of the government, but they do not alter the fact that the state, while trying to evade legal accountability, ultimately dictates policy.

The history of bounty systems also shows that state-sponsored but privatized surveillance and snitching, far from confining disputes to the controlled setting of the court, can create new fronts of conflict. As early as 1705, slaveholding states enacted laws encouraging members of the community to apprehend runaway slaves and rewarding bounty hunters for their efforts. Virginia offered two hundred pounds of tobacco to anyone who captured a runaway servant or slave beyond ten miles of the master’s house or quarter and one hundred pounds of tobacco within that distance. In 1715, Maryland followed suit, also with a reward of tobacco.

By the nineteenth century, bounties were paid in cash. An 1817 law offered twenty dollars to anyone who apprehended a slave attempting to cross the Potomac, and fifty dollars for those caught in states farther away, such as Delaware or New York. The rewards grew over time as planters felt besieged by abolitionist sentiment and increased their reliance on private enforcement—escalating confrontations with armed abolitionist groups that frequently turned violent. Building on these legal regimes, proslavery states successfully included a bounty provision in the 1850 federal Fugitive Slave Act.

Virginia planters discovered that social control depended on good intelligence. The legislature passed a law in 1856 that promised a whopping sum of $500 (the equivalent of $16,000 today) to “any free white person” who gave information leading to the conviction of another free white person involved in aiding an escapee.

Unlike the antebellum bounties, the Texas law doesn’t authorize force. Formally, it seeks to harness private citizen action and channel it into litigation. But its purview—which does not involve corporate practices or environmental policies but people’s intimate decisions concerning their bodies—raises the specter of extreme measures of social control backed by law. In that respect at least, the Texas law may end up spawning a surveillance network similar to the one that enabled the slave bounty systems: not just groups of slave catchers and mercenaries, but also of organized watchmen and lone wolves who kept an eye on the local community.

We can expect that if the law is not repealed or struck down, more private individuals and groups will emerge as de facto agents in the enforcement regime. These abortion watchmen will monitor people’s movements, and self-appointed citizen enforcers may offer second-order bounties for difficult-to-obtain medical information and private communications that will now qualify as relevant evidence in court. Just as mercenaries once employed bloodhounds and paid people for information, so the latter-day version may turn to social media and other technologies to collect what they need to file a lawsuit.

The cases now pending against the doctor, Alan Braid, will be straightforward because he has publicly acknowledged violating the antiabortion law, but much harder cases are around the corner. It’s very plausible that someone within a pregnant person’s intimate circle may become an informant, setting off a terrible chain of events. Even if the individual who seeks an abortion is not legally liable, she will almost certainly be forced to testify. Loved ones, friends, healthcare providers, and coworkers may face similar trauma on top of legal exposure.

One of the lessons to draw from the fugitive slave laws is that such private systems were error-prone and subject to abuse. The legal status of Black people was frequently mistaken, and free citizens were illegally kidnapped all the time. But another lesson is that every action causes a reaction: non-slaveholding states like New York responded by enacting laws designed to rescue freed persons who had been kidnapped and sold into slavery. If the past is any guide, innovations by states to curb abortion rights may prompt other states to enact laws that shield people from bounty hunters, especially considering the far reach of the Texas law in potentially allowing citizens of other states to sue one another in connection to the abortion of a Texan patient. If that dynamic were to take hold, in a vacuum of Supreme Court guidance, we would see complicated and competing regimes regulating women’s bodies and their rights. The emergence of abortion watchmen could also lead to the proliferation of clandestine groups organized to aid patients, shame bounty hunters, and thwart antiabortion states, intensifying private clashes over the issue.

The pastor Mark Lee Dixon ultimately considered the bill he inspired as a reflection of a deeply American idea. He compared the bounty bill to a fried pickle, a delicacy in his part of Texas: something that seems bizarre at first but eventually becomes accepted as a part of everyday life. Bounties have long been woven into the fabric of American law. If Texas and other states considering a similar strategy have anything to say about it, those laws are set to shape the future of reproductive rights.