Supreme Court Inadvertently Supports Vigilante Justice In Texas Abortion Law Case
Civil Policy Brief #174 | By: Rodney A. Maggay | September 19, 2021
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On September 1, 2021 the United States Supreme Court issued its order in the case Whole Woman’s Health v. Jackson. The case began on July 13, 2021 when a lawsuit was filed in the Federal District Court for the Western District of Texas. The case was brought on behalf of a number of abortion providers in the State of Texas. The plaintiffs were seeking to prevent enforcement of Texas Senate Bill 8 (SB 8) before it took effect on September 1, 2021.
SB 8 bars abortions approximately six weeks after pregnancy. Additionally, the law permits any person to sue the health care provider to prevent them from performing the abortion and gives those persons who initiate a lawsuit money damages of $10,000 if they are successful in their lawsuit against the health care provider.
SB 8 was signed by Gov. Abbott and it was scheduled to become law on Sept. 1. The ACLU and others filed suit to stop the law from going into effect because they believed, correctly, it was against Roe v. Wade. The suit was going to take months and so they applied for a temporary restraining order against the law until the case was finished. An appeal was made in the Fifth Circuit Court of Appeals which was quickly denied. An appeal was then made to the United States Supreme Court shortly thereafter. In a 5 – 4 decision the Court declined to block SB 8 and the law went into effect on September 1, 2021. The ACLU case can still proceed to determine if the law is valid. But it will be in force starting September 1 while the ACLU case continues. LEARN MORE
While the Supreme Court’s unsigned order caused an uproar around the nation for its refusal to block enforcement of the Texas law that is clearly contrary to the 1973 Roe v. Wade decision that guarantees a woman’s right to an abortion, it is the legal and procedural discussion that raised the most questions about the Texas law.
A closer examination of the Texas law and the Supreme Court order show that the Court was not interested in making a statement that they were opposed to Roe v. Wade. SB 8 was uniquely written in that the burden of enforcing the new law would not be on state officials as is typically the norm. Enforcement of SB 8 would fall on ordinary Texas citizens who would be the ones bringing the lawsuits against state health care providers.
Texas state officials would have no role in enforcing the new law. This is what the Texas officials successfully argued to the Court – “it is unclear whether the named defendants in the lawsuit can or will seek to enforce the law against the Texas applicants.” Even in the dissenting opinion penned by Chief Justice Roberts, he notes the difficulty of trying to decide the unique facts of the case – enforcement of a law by ordinary citizens and not by state officials – that itself has not been decided by Texas state courts or other federal courts and which has not gone through the usual course of legal briefing and oral arguments like most cases. The Chief Justice would have barred SB 8 from taking effect until judicial proceedings have run their course.
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And based on the Court’s refusal to bar enforcement of SB 8 while the trial proceeds it has inadvertently sent a message that “vigilante justice” as contemplated with this abortion law is acceptable. While the reasoning of the court was based on allowing lower state and federal courts a chance to make a decision on the unique aspects of the case first before the Supreme Court hears it – allowing private citizens to enforce SB 8 – a result of the Supreme Court order is that people are now under the impression that ordinary citizens can take matters into their own hands. Any ordinary citizen, with no personal connection to a health care provider, can bring a lawsuit.
And the motivation for the lawsuit could be based only on money, as there is a $10,000 “bounty” if the lawsuit is successful. The Supreme Court could have suspended this law while the trial on the merits of the law continued. Instead, by letting the law go into effect the Supreme Court now could embolden other states to enact a similar anti – abortion “bounty” type of law.
And now, they have even opened the door for this unique “bounty” procedure to be used in other non – abortion cases. States might see fit to use the procedure of having ordinary bring lawsuits in cases involving free speech, racial justice, protests and for personal LGBQT activities. The Supreme Court has opened the door to a frightening set of enforcement possibilities that may not be limited to just abortion rights.
The Supreme Court’s order focused on the novel question of having ordinary citizens enforce the law. There are now concerns about what that might mean for other personal rights if the “bounty” procedure spreads to other states. The Supreme Court could have shut the door on this method of “vigilante justice” but instead the Supreme Court inadvertently supported it and may have made things worse. LEARN MORE, LEARN MORE