The Right To Sue

A potential legal strategy against medical harm.

This substack article “Lawsuits Are the Hitman of the State” discusses a legal strategy used against both abortion and for “woke” workplaces that might apply to other issues:

Lawsuits Are the Hitman of the State

Texas legislators deployed an ingenious legal strategy to effectively make abortion illegal. How? By creating a new right to sue. Under the Texas Heartbeat Act, any private party can - once fetal cardiac activity has been detected - sue anyone in Texas who performs or facilitates an abortion.

Whatever you think about abortion, the legal engineering is top-notch. The authors covered a whole lot of bases:

• Zero state fingerprints. Not only are the lawsuits private; state officials are explicitly forbidden to enforce the law. When the government does something illegal, you normally sue the government. Under the Heartbeat Act, who do you sue?

• Appeal resistance. The Heartbeat Act stipulates that if an injunction blocks the law’s enforcement, you can still be sued for violations if the injunction is later vacated or reversed on appeal. As a result, Texas providers stopped performing abortions as soon as the law passed despite anticipated legal challenges.

• Hefty penalties. If convicted, the defendant owes a minimum of $10,000 plus lawyer’s fees plus court costs. While not overwhelming, this cost was clearly overwhelming enough to end legal abortion in Texas.

Normally, the law does not allow us to use subcontracting to break the law. You can’t get away with murder by hiring a hitman. The Heartbeat Act, however, lets the Texas government do precisely this. Anti-abortion lawsuits are the hitman of the state.

In other words - we’re not saying it’s illegal. We’re just saying anyone can sue you for it. It’s worth reading the article in full, but it got me thinking about how this strategy could be applied to other efforts against the medical system…

Efforts to stop the harm of circumcision have often focused on banning circumcision. What if instead of a ban, you created a law giving those harmed by a medical practice in childhood a right to sue as adults?

This could extend to everything from vaccine injury to unnecessary wisdom teeth removal to trauma from birth interventions. Harmful childhood interventions would disappear overnight while still remaining technically legal.

Passing a law that gives the “right to sue” is a different legal and media fight than an outright ban. Now, arguments would revolve around the harmed. Doesn’t someone who’s been harmed have the right to sue? The medical system would be put on the defensive, having to explain why the victims of botches have no legal recourse in adulthood.

It could also create a coalition between people and organizations harmed by the medical system, rather than treating each issue as a separate act that requires a specific ban. In fact, you could avoid the language of any particular hot-button issues by simply saying that those harmed by the medical system in childhood have a “right to sue” as adults.

Since this harm is done to children, such a law could mandate greater penalties than malpractice or medical harm done to adults. Massive penalties would make doctors hesitant to do any questionable practice to children and be forced to consider the feelings of the eventual adult they are operating on in childhood.

Obviously, describing an idea is much easier than executing it, and such a law would still require a lot of legal writing and political will to accomplish, but this seems both more feasible and effective than an outright ban, doesn’t it?