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There is some history behind oppression by proxy: both Nazis and Communists sponsored pro-government militias that committed violence on the respective governments' behest while the governments denied direct involvement. Can state governments do that in US?

The trigger for the question was the Texas "abortion ban", which is not really a ban but rather an open season for private citizens to sue abortion providers at the Texas government behest, on the state's dime, and in the state's courtrooms, while the state would deny direct involvement and therefore deny Roe v. Wade violation. Because, apparently, Texas v. Planned Parenthood would be illegal, but John Smith v. Planned Parenthood, requested and sponsored by Texas, is not.

This question is not about the particulars, not about abortions, but rather about how far state governments can go in encouraging and sponsoring actions that are illegal for the state government to perform.

Can Texas declare: "any citizen will be paid $10k for filing frivolous lawsuits against abortion providers, regardless of merit or standing," and then claim that Texas doesn't prosecute abortion provider? Apparently, SCOTUS has no problem with that.

Can a state declare: "any violence against insert a group here shall not be prosecuted," which is pretty much what Nazis and Communists did, and then claim non-involvement in the violence that would ensue?

Can NY or CA decriminalize violence against gun owners and publish their names and addresses?

Can Texas offer $10k per abortionist's scalp?

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    The abortion provider would have to be found to have broken the law before someone got paid for bringing suit I think. They're offloading enforcement of the law to private civil suits, but it's not illegal to sue someone. Also, the payment is per illegal abortion proven, and only one penalty can be assessed for a specific abortion, so the state is incentivizing organizations to bring suits against abortionists who repeatedly break the law, not really individual scalp hunting.
    – ColleenV
    Sep 2 at 19:44
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    "Apparently, SCOTUS has no problem with that." This is not an accurate description of what has been held in this case by SCOTUS thus far. Analysis of the court's recent declining to stay the law decision can be found at reason.com/volokh/2021/09/02/…
    – ohwilleke
    Sep 2 at 20:53
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    I think my answer to Can the Texas Senate Bill model be used for gun control too? is relevant to this question as well. Sep 5 at 17:45
  • "on the state's dime": no, the plaintiff's costs are to be borne by the defendant if the plaintiff prevails or by the plaintiff if the defendant prevails. That is, the losing party pays the plaintiff's costs. The defendant always bears the defendant's own costs. Similarly, the $10,000 award is not paid by Texas but by the defendant (only if the plaintiff prevails, of course).
    – phoog
    Sep 5 at 17:45
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Can a state declare: "any violence against insert a group here shall not be prosecuted," which is pretty much what Nazis and Communists did, and then claim non-involvement in the violence that would ensue?

This would be a violation of the Equal Protection Clause. https://www.justice.gov/crt/guidance-regarding-use-race-federal-law-enforcement-agencies goes into exhaustive detail on the topic of what may constitute an illegal abuse of selective enforcement. A key quote is highly relevant to your question:

[T]he Constitution prohibits selective enforcement of the law based on considerations such as race.

There is a lot of case law on this topic. This is frequently discussed in the context of race (especially profiling).

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  • That takes care of race or ethnicity based groups; however, for the insert a group here I meant abortion providers in red states, or gun owners in blue states, or whatever group that the state government decides to pressure. The law you cited doesn't seem to indicate that a state government cannot deny protection based on, say, profession or hobby
    – Michael
    Sep 2 at 20:34
  • @Michael: It's tough to research this, since typically selective enforcement is about a city choosing to enforce laws only against specific people (e.g., Here is an example of a city enforcing their sign ordinance only against a specific bankruptcy attorney and eventually settling). There are many old cases of vigilante lynch mobs being ignored by prosecutors, but a cursory look didn't find any recent cases where this was discussed in court. Though they probably exist.
    – Brian
    Sep 2 at 20:49
  • Equal protection attacks on unequal enforcement are extremely limited. And, the states can decriminalize private conduct that has historically been illegal (e.g. Colorado does not have a state simple assault misdemeanor), has no affirmative duty to see that criminal laws are enforced (e.g., it can decide not to prosecute lynching participants or rapists), and can discretionarily decide who to prosecute and who not to prosecute in ways that set powerful policies. It also can seriously deputize private citizens (e.g. bail bondsmen).
    – ohwilleke
    Sep 2 at 20:51
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Can Texas declare: "any citizen will be paid $10k for filing frivolous lawsuits against abortion providers, regardless of merit or standing," and then claim that Texas doesn't prosecute abortion provider? Apparently, SCOTUS has no problem with that.

The question isn't not merely whether SCOTUS "has a problem" with it, but what recourse is available. When it comes to the Texas law, no one has been directly harmed by it so far, so the case for standing is rather difficult. If someone were to have a lawsuit filed against them, there would be a much stronger case for standing. SCOTUS is the highest court in the land, but that just means that other courts are obligated to follow their rulings. Addressing actions by the legislative or executive branches is more complicated. It's generally accepted that actions by agents acting on behalf of the government are treated as if the government were doing them, but even if the government were harassing people participating in abortions, it would not be enough to argue that this is illegal. One would also have to make an argument as to what recourse SCOTUS is authorized to grant.

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    "When it comes to the Texas law, no one has been directly harmed by it so far" Quite a few people have already been denied abortions they were seeking when most providers effectively shut down when the law went into force, and providers have been denied the ability to practice their profession. Those effects are comparable to ones that have been held to grant standing in the past in federal suits. Litigation remains in progress. Sep 3 at 0:31

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