S.B. 8 not only bans abortion at six weeks, a period of time when many people don’t know they’re pregnant, but it also deputizes citizens to enforce the ban. The law financially incentivizes private citizens to actively seek out and sue people for “aiding or abetting” women who are attempting to get abortions in the state of Texas. If someone successfully sues, they could receive a bounty of $10,000 and have all of their legal fees paid for by the opposing side.
So it's not the women themselves who can be sued, it's groups that organize to try to get them abortions after the six-week period. These can be sued by private citizens (or competing nongovernmental organizations) for 'aiding and abetting an abortion,' and cash transferred from the pro-abortion organization to the anti-abortion one.
That's a new way of weaponizing government to aid political warfare. I'd like to hear a defense of it from someone who thought it was a good idea before I decide what I think about it.
12 comments:
I am not a lawyer but to me this bears a distressing similarity to the current fight over tech censorship enabled by Section 230. Any government should not be able to sidestep constitutional limitations by claiming that the actions it is authorizing are being done by private citizens or organizations.
Agreed. The goal is noble; the means are dicey.
Have a look at Althouse.
Here's mine, based on the core of CJ Roberts' dissent from denying the injunctive relief (which is all that the Supremes have done). Roberts' claim: I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
It seems to me that Roberts has misunderstood the situation. Even at the State level, the citizens are sovereign, not the governments they hire/elect from time to time. Far from Texans' government avoiding responsibility for its laws, it has put that responsibility in the present case, without filter, where responsibility originates: with the sovereign citizenry.
It's a large stretch to equate this move--actively recognizing the sovereignty of the citizens--with very large businesses arrogating the sovereign people's authorities to themselves.
Eric Hines
I instinctively don't like this but I also don't like it for a practical reason:
If I was passionately pro-abortion, I would find a person or a small group of people, not famous or rich or connected, just private citizens who supported this law. I would sue them, claiming they had assisted someone or several someones to obtain an abortion. It doesn't matter that it's not true - making innocent people spend money to defend themselves against the lawsuit would be the goal. Blackening the reputations of those targeted would be desirable also.
If I was even more devious, I would find women dedicated to the cause of abortion and ask them to perjure themselves, claiming whoever I targeted had helped them. Without more than 5 minutes thought, I can invent all kinds of heart-rending stories about people who claim to be so moral but are happy to take money from desperate women.
This is quite a can of worms to open.
I'm inclined to agree with Elsie about the probability for abuse. However, I also side with the SCOTUS majority. It requires standing and proven harm in every other case that is accepted by the courts, so why change the requirements now?
LittleRed1
I'm generally inclined to oppose the method, but as I said I'd like to see some defenses of it before I decide what I think.
Mr. Hines points out, rightly, that citizens are ultimately the sovereigns and it makes sense to involve them in restraining bad behavior. That picture is complicated by the fact that it will not mostly be citizens acting here, it will be political NGOs that may or may not be made up of citizens (and certainly not citizens of Texas, as the law explicitly states that you needn't reside in Texas at all).
Further, by granting standing to literally everyone it appears to me to strip a potentially important protection. No one should want to be liable to being sued by anyone, even if you've never hurt them or done them any wrong. Otherwise those wealthy enough to afford the initial suits (expecting they will often recover costs) could drive us out of public life; we couldn't afford to go against moneyed interests because we'd end up in court all the time, and unable to be free even enough to earn a living.
Abortion is a great moral wrong (I am convinced after decades of philosophical consideration); and not just individually, but at scale. The leading cause of deaths of Americans is abortion, assuming that unborn Americans count as Americans. So I can see an argument that unusually powerful tools might be necessary to combat this problem.
However, my concerns about this approach are significant. So, if you run across what looks like a knock-down argument in favor of it, please let me know.
I would find women dedicated to the cause of abortion and ask them to perjure themselves, claiming whoever I targeted had helped them. Without more than 5 minutes thought, I can invent all kinds of heart-rending stories about people who claim to be so moral but are happy to take money from desperate women.
You're late to the party. That's exactly what "Roe" did, at the behest of militant baby-killers.
Lying is what the Left does. There's a reason for the old saying that 'lies and murder are bed-mates.'
Another thing that bothers me: I don't think people have thought through the second order effects. This model is bad, I think, even if it's intended to be applied to a good purpose. It can be used for a bad purpose too.
Let's say that some state passes a similar law on gun carrying. Now gun carrying may be legal in that state, but say they pass a law that anyone who encounters someone carrying a firearm has a right to sue for the fear and terror this causes for $10,000 plus court costs. Actually, the Texas law is worse than that; you don't have to actually encounter the affront. So anyone anywhere who even hears of someone carrying a gun can sue.
Now a fact of life for the right is that the left owns most of the NGO Archipelago (as my friend David Reaboi calls it). They have a lot more activist lawyers who exist to sue to advance political causes. So every time any of you carry a gun in that state, even though it's legal (and an explicit constitutional right), you owe them $10,000 plus court costs.
(And can you only be sued once per offense? What if every member of Everytown 501c3 can sue you for ten grand each? Since this is civil law, there's not the anti-double-jeopardy protection of criminal law.)
Now, that sounds like conspiracy to violate or deny rights under color of law, which is a Federal offense. Using the courts to do it is just as bad as using a corrupt sheriff. Abortion isn't a real right, of course -- it's not named in the constitution, and exists as a judicial fantasy only; and it is philosophically indefensible as a right as well -- but it's been treated as one for so long that millions believe it is. Lots of judges will defend the idea that it is.
I'd say this has to go, unless somebody comes up with a really great argument to the contrary.
So anyone anywhere who even hears of someone carrying a gun can sue.
The part of the Texas law that gives standing to non-Texas citizens is an error.
On the rest of that, how will "anyone anywhere" hear about the abortion? Medical procedures are intensely private, and with abortion, the only ones who even know about it are the mother, often (usually?) the father, and the doctor and his nurse. The doctor and nurse are legally, as well as ethically, barred from discussing the matter with anyone other than the mother and those with whom the mother grants the doctor and nurse prior, written permission to discuss.
Thus, the most likely source of the "hearing" is the mother or the father. I don't see a widespread degree of suits, unless the principles choose to be motormouths.
Eric Hines
On the rest of that, how will "anyone anywhere" hear about the abortion?
As I mentioned, my assumption is that this will become a warzone for NGOs devoted to and against abortion. You'll end up with Project Veritas type NGOs (including perhaps them themselves) stalking providers and their opponent NGOs. The legal target for the suits isn't the women themselves, but providers and aiders/abettors; thus, the harassment will focus on them. (Which is a clever feature of the law for a couple of different reasons.)
I ran across this Twitter thread - never read the guy before - and he seems to be arguing that what the Texas legislature has done in this bill as far as mechanism is not going to inspire the left to do the same because the left is already doing the same:
https://twitter.com/CrownMaybe/status/1433998315180408836
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