It’s bad enough that the US Supreme Court all but eviscerated its nearly five-decade-old precedent protecting women’s reproductive rights by standing idly by to let Texas’ shockingly restrictive antiabortion law go into effect Wednesday.
In the process, the court’s majority also winked and nodded to other states, signaling that they can use the same kind of procedural maneuvering to infringe on other constitutionally protected rights. All they have to do is deputize and incentivize citizens to act in a way that state actors cannot under the law and Constitution.
That’s why Roe v. Wade lies on its deathbed today.
Texas’ new law not only prohibits physicians from performing abortions after six weeks — long before viability and in clear violation of Roe — it provides no exceptions for incest or rape, and only narrow exemptions for the health and life of the mother. It also enlists citizens to enforce the prohibition by giving them the power to sue providers as well as anyone who “aids or abets” abortion. Even if someone has no intent to help someone access an abortion — for example, an Uber driver who gives a woman a ride to a provider — they can face upwards of $10,000 in statutory damages per abortion. That cash plus legal fees would have to be paid to the plaintiffs if they prevail in court. However, if a defendant were to win in court, they would not recoup their legal fees. Lack of intent or knowledge of the law is no defense.
As Justice Sonia Sotomayor pointed out in her blistering dissent of the majority’s inaction: “In effect, the Texas Legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
It is due to that very deputization that Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett declared the court’s hands tied.
Because no one had yet tried to “enforce the Texas law against the applicants in a manner that might permit our intervention,” the five justices reasoned in a short opinion, there’s no way for the court to step in. They opted not to even temporarily halt the law from going into effect until the court can fully hear the full merits of the case next term.
That was a bridge too far even for Chief Justice John Roberts Jr., who called Texas’ citizen-led scheme “not only unusual, but unprecedented,” and correctly noted that its very purpose was to “insulate the State from responsibility for implementing and enforcing” the law.
The notion of Texans or any other Americans being called on, by law, to interfere in other people’s reproductive decisions is macabre enough. But to incentivize them with cash to take the place of state actors, all to evade judicial review, is mind-blowing.
And it won’t stop there.
“It is part of a desperate effort to do by harassment, intimidation, & menacing what could not be accomplished by regular channels of democratic engagement,” tweeted Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. Ifill noted that the approach is already evident in a number of areas, from voter suppression bills to coordinated citizen attacks on school boards who dare to implement masking and other pandemic control mandates.
Georgia’s restrictive election laws, for example, allow voters to file unlimited challenges against other voters. That resulted in more than 360,000 challenged votes in last year’s Senate runoff election — despite the fact that only a few dozen votes were ultimately found to have any irregularities.
Taking the court’s cue, state lawmakers can empower citizens who see transgender Americans entering a restroom to sue for statutory damages if they think they chose the wrong one.
States can give a civil right of action to people who witness a gun seller running a background check on an applicant, or trying to impose a waiting period on those with records of domestic violence. State lawmakers can allow anyone who suspects a neighbor of mailing in a ballot of a housebound relative to drag them into court. And as long as the state officials are not a part of the lawsuits, based on the Supreme Court majority’s reasoning, the justices could, again, simply turn the other way.
It’s the kind of technical loophole that gives the court’s already extremely problematic “shadow docket” — which allows it to make deeply impactful rulings without the transparency of a fully argued and brief merits case — an even darker cast.
And it’s an urgent call to Congress and the White House to act, not only by codifying legal precedents like Roe to protect women’s rights but also in implementing reforms that bring more accountability and transparency to the court, which itself has been shaped — in large measure by Senate Republican leader Mitch McConnell — by political motivations rather than principles of justice. The Presidential Commission on the Supreme Court, created by President Biden to consider and recommend reforms, had better be watching closely.