The Travesty in Texas

On September 1, the U.S. Supreme Court refused to block a Texas law from taking effect that, as Slate legal analyst Mark Joseph Stern summarized it, “succeeded for the first time in almost half a century in outlawing almost all abortions in a state.” The legislation bans the procedure at about six weeks into a pregnancy, when the bill’s proponents claim that a “fetal heartbeat” can first be detected. Because most people don’t realize they are pregnant by then, the new law makes legal abortions practically impossible to obtain in Texas.

The most extraordinary—and, frankly, disturbing—feature of the Texas anti-abortion bill  is its enforcement mechanism. The government is explicitly forbidden from enforcing the legislation. Instead, the law creates a bounty-hunter system that deputizes private citizens to bring civil suits against anyone who performs or aids with an abortion. As the New York Times reported, this includes “doctors, nurses, insurance companies, even Uber drivers who help take women to clinics.” There are virtually no limits on who has the standing to bring such a suit—a person doesn’t even have to live in Texas to do so. If successful, the plaintiff is promised a $10,000 reward; if the plaintiff loses, the law specifically exempts him or her from having to pay damages or the legal fees of the wrongly accused. These provisions are not only deeply unfair, tilted mightily toward empowering plaintiffs; they could inflict cruelty on pregnant people at their most vulnerable. Imagine a pregnant person who has a miscarriage—and an abusive partner who refuses to believe them.

Why would the Texas legislature contrive such a vicious way to enforce abortion restrictions? Aside from the pleasures of cruelty, its design is meant to help it survive a challenge in the courts. That’s worked so far: the majority opinion in September’s Supreme Court ruling cited the “complex and novel” procedural questions involved for its reluctance to provide an injunction against the law—the majority were just deferring to a state legislature in the midst of supposed befuddlement. But Justice John Roberts was right to reject such reasoning. In his dissent, he described the Texas law’s statutory scheme as “unprecedented” and noted that he believed preliminary relief should have been granted “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.” Justice Sonia Sotomayor went further. Calling her colleagues’ decision “stunning” and “untenable,” she offered what should have been the most obvious rejoinder to the Texas legislature’s gambit: “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”

For now, at least, abortion laws as restrictive as Texas’s are unconstitutional, and it is reckless to try to avoid that reality by turning the state’s citizenry into a network of informants. People of goodwill, including those opposed to abortion, should condemn this law.