How Texas Senate Bill 8
Opened the Door to Vigilante Laws and
Why These Laws Pose Such A Danger
Civil Rights Policy Brief #186 | By: Rodney A. Maggay | April 5, 2022
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In 2021 the State of Texas passed an anti – abortion law with a unique enforcement mechanism. Under the law, any private citizen could sue the person who tries to get an abortion, the doctor who performs the procedure or the clinic who provided the abortion procedure to a woman. If successful in the lawsuit the private citizen who brought the action would be entitled to $10,000. The bill was highly unpopular and was challenged in Texas state and federal courts. The case made its way to the U.S. Supreme Court but the Court refused to suspend the law while the case was ongoing.
In response to the controversial enforcement mechanism of the Texas abortion law, copycat bills have been introduced in other states. Last month in Idaho, Governor Brad Little signed an abortion ban into law that was modeled on the Texas abortion bill. It also allows private citizens to bring private lawsuits against providers that perform abortions while also providing a monetary award for the plaintiff if successful. But the bills have not been restricted to only abortions. In Florida, Governor Ron De Santis has been vocal in his support for two bills – the Parental Rights in Education bill (popularly known as the “Don’t Say Gay” bill) and the Stop Wrongs To Our Kids and Employees bill (known as the Stop WOKE act). Both bills permit parents to sue schools and teachers if the schools teach critical race theory or speak to the students about gender and identity issues in the classroom.
As a response to these bills, California Governor Gavin Newsom announced that he was working with California state legislators on a bill that would permit private citizens to sue “anyone who manufactures, distributes or sells an assault weapon…in the State of California.” The bill was modeled on the Texas law where the plaintiff would also get a $10,000 reward if their lawsuit is successful.
While one aspect of the Texas abortion bill was its clear defiance of a woman’s right to choose to have an abortion by making it difficult to get one, the long – term effect of the Texas law is that it opened the door for other states to enact bills that could be viewed as “vigilante laws.”
One reason why the Texas abortion law is appealing to other states is because of the unique enforcement mechanism written into the law. Because the abortion law in Texas would be enforced by private citizens bringing private lawsuits, the law could not be challenged in a court of law. The way the law was written made the law immune from scrutiny. No court could overturn the law or declare the law unconstitutional since enforcement of the law lay with private citizens and not state officials or prosecutors. This unique structure gave rise to the term “vigilante law” since any private citizen, even one who had no connection to the parties involved (and in the Texas’ case the plaintiff bringing the suit did not even have to be a Texas resident), could simply walk into a courthouse and initiate a lawsuit. The plaintiff was given the power to decide who they wanted to sue and when. This obviously led to the copycat abortion law in Idaho and the two bills in Florida. There no longer had to be any worry that a court would declare a law unconstitutional and void because those laws as written could no longer be subject to any kind of judicial scrutiny or review.
But this new structure of writing bills is nothing more than a gimmick to make an end run around the Constitution and not follow certain laws and case law. The Constitution is supposed to be the supreme law of the land with a unique framework that provides and protects certain fundamental rights – free speech right, right to bear arms and the right against unreasonable searches and seizures among many others.
What Texas did was decide it did not agree with a woman’s right to an abortion and decided to enact a law denying that woman her right. And with the way the law was written the law could not be challenged in a court of law. Texas had found a way to deprive a person of their rights without being explicit about it.
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But now other states have decided that if there is a right that they do not want a person to have that they can just follow the example set by Texas. Instead of nullifying a woman’s right to an abortion Florida and Governor De Santis have gone a step further and now decided that a teacher’s speech in a classroom on certain topics should be banned without any recourse for review in open court. Does anyone believe that only abortion, critical race theory or LGBQT issues will be the only issues that receive the “vigilante law” treatment?
If these types of laws are allowed to stand than it can only a be a matter of time before any random citizen is permitted at their whim to enforce a law against a fellow citizen that might deny another legal right – a private lawsuit that might deny the right to vote, a private lawsuit that challenges a neighbor’s immigration status, a private lawsuit questioning a friend’s reading of a banned book or even private lawsuits that touch on matters of religion.
“Vigilante laws” offer a direct threat to the rule of law in the United States. The Texas law is the most serious threat because it stubbornly refuses to comply and adhere with Supreme Court law – Roe v. Wade. But in the long term, it is the fact of giving private citizens the right to sue their family, friends and neighbors in a bounty style manner that causes the most concern. It is never a good thing to let people take the law into their own hands. So, it is imperative that the Supreme Court, or maybe even Congress, step in and stem the spread of private citizen lawsuits under laws that were designed to evade judicial review and scrutiny. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
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