State governments have devised a new means to evade the Constitution. Their new
means is to enact tort statutes that, in effect, ban constitutionally protected conduct.
In particular, some states have made the provision of an abortion a tort for which
there can be no defense and no cap on the amount of liability. These states have
made performing an abortion essentially illegal. Yet, because tort statutes are
enforced through private litigation, rather than public prosecution, a number of
courts have held that they lack jurisdiction to review these laws. Federal courts
have concluded that standing doctrine and state sovereign immunity bar judicial
review of any privately enforced tort legislation. These courts have refused to
recognize that this new breed of tort statute attempts to “privatize” the
government’s restriction of constitutional rights. States have taken a law that would
clearly be unconstitutional were it properly treated as “public” law and immunized
it as “private” tort law. Courts have refused to disallow this manipulation of the
public/private distinction embedded in our system of law. This Article proposes a
novel method for analyzing tort legislation that violates fundamental rights. It
provides a framework for understanding how state legislatures are attempting to
privatize governmental regulation. It then proposes a new solution that satisfies the
requirements for federal court jurisdiction but also ensures that state legislatures
do not cloak deprivations of fundamental rights under the veil of private rights of
action.