Laurence Tribe (2)
Humanize From Discovery Institute's Center on Human Exceptionalism

Laurence Tribe Opposes Private Enforcement of Abortion Laws but Okays It for Animal Rights

The Left always howls when the Right adopts its tactics. Take the idea that public policy should be enforced via private citizen civil litigation. Texas just passed such a law about abortion and the political Left is stomping its collective feet. Lefty law professor Laurence Tribe has co-authored a piece in the New York Times to complain. From, “Texas Tries to Upend the Legal System With Its Abortion Law:”

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant; it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

Where has Tribe been? Private “Stasi” enforcement schemes have been around for years. Indeed, “nature rights” laws almost always adopt that approach — which I have frequently reported here. Indeed, more than 30 municipalities around the country that have adopted such ordinances, with the goals of thwarting fracking, interfering with capitalism, or some such reasons.

Take Florida’s proposed constititional amendment to grant “rights” to the state’s waterways. Here is the pertinent language of that proposal currently trying to qualify for the ballot (my emphasis):

c) Any resident, nongovernmental organization, or government entity of this state shall have standing to enforce and defend the rights secured by this section in any court possessing proper jurisdiction.
(d) Waters may enforce and defend the rights secured by this Section through an action brought by any resident, nongovernmental organization, or government entity of this state pursuant to (c), in any court possessing proper jurisdiction, in the name of the waters as the real party in interest.

Funny, I don’t see Tribe complaining.

Tribe notes that the Texas law doesn’t also permit state enforcement, making it harder to challenge constitutionally. But that seems a distinction without much of a difference to me. Allowing private citizens to sue is the point of his upset. Whether or not the state can also sue is quite beside the point.

Tribe worries:

Imagine if this challenge fails [litigation against the Texas law] on procedural grounds. That would not just make it impossible for anyone to challenge one of the most restrictive abortion laws in the country. It would also set an ominous precedent for turning citizens against one another on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.

Which is precisely why nature rights proponents pursue this approach.

So do animal-rights activists who push “animal standing” in courts, so they — the activists — can sue animal owners in the name of the animals. In fact, the highest court in New York has just agreed to determine whether an elephant can sue.

Oh, and guess who has supported animal standing? Why, one Laurence H. Tribe, who said in a 2000 speech:

Recognizing the animals themselves by statute as holders of rights would mean that they could sue in their own name and in their own right. . . . Giving animals this sort of “virtual voice” would go a long way toward strengthening the protection they will receive under existing laws and hopefully improved laws, and our constitutional history is replete with instances of such legislatively conferred standing.

That’s what the Texas law does for the unborn, isn’t it?

And guess who is filing an amicus brief in support of granting the “elephant” the right to sue? Good guess! Yes, that would be Tribe.

Whether or not the Texas law is wise policy, Laurence Tribe is a hypocrite.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.