Equal Rights Advocates denounces the United States Supreme Court 5-4 decision this week allowing Texas to enact and enforce the nation’s most restrictive anti-abortion law (SB 8.) In a rushed decision without briefing or oral argument, the Court refused to enjoin the Texas law, which prohibits abortion when a fetal heartbeat is detected (typically around 6 weeks,) despite the 1974 Supreme Court Roe v. Wade decision that established a constitutional right to the procedure.
SB 8 is problematic for reasons beyond its anti-abortion ideology. Indeed, it is a serious blow to decades of reproductive access and social progress – progress that has been buoyed by a constitutional right to choose. SB 8 allows no exception for rape or incest. Under SB 8, a pregnant person’s private decision-making around family planning is not only negated but criminalized and made the subject of public action. The statute flouts medical common sense by banning abortions before many pregnant people know they are pregnant. Moreover, the harm of SB 8 is widespread and deep. The populations that will be affected the hardest by this statute are the typical targets of conservative rule-making and governance: pregnant women, specifically pregnant women of color, low-income people, pregnant LGBTQ+ people, pregnant youth, survivors of assault, and people experiencing homelessness and violence. With its wild cruelty, SB 8 is a weaponized tool of the anti-choice and anti-abortion crowd. And, as with any arms race, other states are rushing to have their own version of SB 8.
Where SB 8 is particularly pernicious and dangerous, however, is in the way it creates a crafty loophole for the State to escape its responsibility — the responsibility to adhere to the Constitution, to ensure the health and safety of its residents, even to enforce its own laws. By solely empowering private citizens to enforce SB 8’s provisions, and making it impossible for State agents and officers to enforce this law, the State escapes responsibility. They have placed authority and responsibility for enforcement in the hands of the mob – without guardrails of any kind. Abortion bounty hunters, aka someone’s next-door neighbor, can now sue Texas-based abortion clinics, doctors, and anyone who provides, aids, or even contemplates helping someone access an abortion. These private bounty hunters – authorized by the State yet not acting as representatives of the State – will receive a $10,000 “award” from the courts – also paid for with state dollars. This is a chaotic nightmare of crossed public/private duties and accountabilities. With SB 8, the Supreme Court has not only backed a flagrantly unconstitutional law, but it has also given a green light to an unprecedented private enforcement scheme that blocks constitutional challenges by clinics to government shut-downs.
As Justice Sotomayor (joined by Justices Breyer and Kagan) emphasized in her scathing dissent:
The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand. The act is clearly unconstitutional under existing precedents. The respondents do not even try to argue otherwise. Nor could they: no federal appellate court has upheld such a comprehensive prohibition on abortions before viability under current law.
The Texas legislature was well aware of this binding precedent. To circumvent it, the legislature took the extraordinary step of enlisting private citizens to do what the state could not. The act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the act, “aids or abets” such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the act, or even intends to engage in such conduct. Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in “statutory damages” for each forbidden abortion performed or aided by the defendant. 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.
The legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the act directly and relying instead on citizen bounty hunters, the legislature sought to make it more complicated for federal courts to enjoin the act on a statewide basis.
Taken together, the act is a breathtaking act of defiance – of the constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.
We will not go back. We will not be denied reproductive options before we even know we are pregnant. We will not be hunted. Our wombs are not cash prizes. There is no workplace equality, financial security, or economic mobility for women without reproductive justice and autonomy – anything less than that is economic precarity, discrimination, and oppression.
Equal Rights Advocates not only denounces this unconscionable and unconstitutional decision, but we will also fight it and demand passage of the Women’s Health Protection Act protecting access to abortion for all Americans.
Please join our Action Team and stay tuned for immediate actions to turn back this decision, this law, and this assault on women’s choice, in Texas and throughout the country.