Outsourcing Penal Control in Abortion Legislation

• In Event: Ethics, Language, and Human Rights in Research, Policy, and Practice

Abstract

Before the fall of Roe v. Wade in 2022, Texas lawmakers effectively criminalized abortion by authorizing private citizens to pursue civil action against anyone who provides, aids, or abets (the procurement of) an abortion. This distinct form of punishment is neither direct state violence nor internalized discipline but lies cleverly in between. My critical discourse analysis of proposed abortion bills in Texas and Maryland between 2020 and 2023 explores how this exercise of state control is constructed in legal texts. I contend that authorizing private civil action against transgressors not only expands state power by evading due process and constitutional protections associated with criminal prosecution but also improves its efficiency. It outsources the costly task of surveillance to ordinary citizens and compensates them in symbolic tokens of moral superiority. Moreover, the financial and administrative burdens on the legal system are modest to the extent that the broad authorization of private civil action is an effective deterrent. Hence, the ease and efficiency of private civil action portends a viable and valuable penal technique that implores us to examine this new vehicle of state control that runs on social relationships and moral authority.

Author

• Aubrey Jackson Soller, University of Maryland, Baltimore County