Let’s set aside our views on abortion. Instead, let’s consider one aspect of the new Texas abortion law that took effect last week.
All of us should be able to agree on this, whether we find abortions abominable or support a woman’s right to end her pregnancy: The enforcement mechanism created by Texas lawmakers is un-American. It farms out enforcement of a state’s laws to vigilantes and bounty hunters.
Those who followed news of the new law and the U.S. Supreme Court’s 5-4 decision last week to let it go into effect, at least for now, can be forgiven if they missed details about this enforcement mechanism. Lawmakers took the enforcement power away from government and gave it to ordinary citizens, the John Q. Publics, or to activist organizations with a strong motivation to track down women suspected of ending their pregnancies by abortion.
The lawmakers’ motive was not distrust of government officials or Texas law enforcement agencies. Instead, the motive was to make it impossible for defenders of abortion to sue state officials in federal court to stop them from enforcing the law.
If state officials can’t be stopped, who would opponents sue — all 29 million individual people living in Texas?
Americans who support the 50-year quest to rid the United States of Roe v. Wade should be very uneasy about where this type of vigilante justice might be used next.
Maybe supporters of strong gun rights should be uneasy, or maybe those who believe climate change is a cooked-up concern should be worried, or maybe those who think the views of clean-water activists are overblown should be uneasy. These people likely would be troubled if the vigilante approach to justice were used in these types of cases.
That’s what makes this moment a game-changer in United States history. Until now, people who sue another person or business must have been directly harmed by the defendant’s actions. But the Texas law strips away the need for someone to have “standing” to bring such a lawsuit.
The law empowers any person to sue anyone who assists a woman seeking an abortion from about six weeks on after she misses a menstrual period. The targets of these lawsuits could be the doctor, or the clinic that offers abortions, or employees of these facilities, or the person who drives the woman to the clinic, or the pastor who offers sympathy and counsel.
If John Q. Public wins, the losing party is ordered to pay John’s attorney fees, along with a $10,000 bounty for bringing the lawbreaker to justice. But if John Q. Public loses, the target of the lawsuit still is out the attorney fees he or she paid to fight the case and has no recourse against the person bringing the lawsuit.
The underlying strategy is to make it so expensive for those providing abortions, or assisting providers, that doctors and clinics stop performing the procedure. Already, officials in a half-dozen other states have begun talking about adopting the Texas strategy. Don’t be surprised if Iowa lawmakers do this, too.
If the U.S. Supreme Court allows this “enforcement” mechanism to stand, do we really believe it will only be used to fight abortions? Think about where this might lead in other states — especially states with Democratic majorities in their legislatures and governors who are Democrats.
We should not be surprised if those states adopt the citizen vigilante and bounty hunter strategy to make it prohibitively expensive for gun sellers to continue selling those legal products.
We should not be surprised if some states decide to target owners of livestock confinement facilities and fertilizer retailers and bring them to their knees financially for fouling that state’s rivers and streams.
We should not be surprised if some states go after owners of coal-burning power plants and gasoline retailers with a flood of citizen lawsuits for contributing to the pollution that fuels climate change.
Texas lawmakers have given a green light to state-sanctioned harassment and intimidation, all because lawmakers want to accomplish something the courts have blocked them from doing before, ending abortions in that state.
“Even those opposed to abortion should be alarmed by this law, which could draw a road map for states and localities looking to dismantle constitutional rights with impunity,” two civil liberties lawyers, Julia Kaye and Marc Hearron, wrote in a recent Washington Post column.
“S.B. 8 should shock anyone, in any state, who cares about any fundamental right. The Texas Legislature has set fire to basic principles of constitutional governance, and its attack must be quickly extinguished.”
This commentary by Randy Evans, executive director of the Iowa Freedom of Information Council, is published through a Creative Commons license.