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The Supreme Court effectively overturned Roe vs. Wade with a 5-4 unsigned decision issued in the middle of the night Wednesday. The Texas state government created a legal end run around precedent to ban the vast majority of abortions in the state, and set up a massive incentive to suppress even the ones that are still technically legal. The court declined to stop it.
It’s legal Calvinball — five ultra-reactionary justices, one of whom occupies a stolen seat and three of whom were appointed by a president who lost the popular vote — ignoring all precedent and basic constitutional mechanics to stuff through an incredibly unpopular right-wing attack on reproductive freedom. And the legal mechanism they countenanced is even worse than the effect on abortion rights.
Here’s how the Texas law works. As Mark Joseph Stern explains at Slate, it was designed as a nakedly tendentious way to get around the entire American legal framework. It bans any abortion that happens once a fetal heartbeat can be detected (which typically happens at about six weeks), but forbids any state officials from enforcing the law.
Instead the law allows any random person to sue an abortion provider for $10,000 in civil court for providing an illegal abortion, or for aiding or abetting an illegal abortion (even if the person did not know their aid would be used for an illegal abortion, like a donation for instance), or for even intending to do so. If you post on Facebook that you’re going to donate to post-heartbeat abortion funds in Texas, congratulations, Texas just put a $10,000 bounty on your head. There is no exception for rape or incest, though the law does say a rapist can’t be the one to sue.
That structure thus takes advantage of the fact that federal courts aren’t allowed to enjoin state ones to make it impossible to sue anyone to contest the law. It’s like Republicans were reading Kafka’s The Trial as an instruction manual.
Just the strict legal function of this law will make most abortions illegal. The length of pregnancy is typically calculated from the date of a woman’s last period — meaning a woman “six weeks pregnant” has only really been pregnant for four weeks. Basically you have two weeks from a missed period to get in under the technical legal wire. Most people do not even realize they’re pregnant at this point, or have trouble scraping up enough money or getting an appointment that fast, which is why about two-thirds of abortions happen after six weeks.
In practice this law will almost certainly destroy all abortion providers in Texas inside of a few months. It stipulates that if a bounty hunter wins in court, then the defendant has to pay both party’s legal bills, and an abortion provider found guilty is shut down. But if the defendant prevails, the bounty hunter does not have to return the favor. It’s practically an open invitation for any conservative with a bit of money to file endless lawsuits against all abortion providers, including every member of their staff, and knock them all out of business with legal fees and harassment. (The fact that the same trick could be done against literally anyone — like every Republican in the Texas legislature — does not seem to have occurred to the Texas GOP, at least not yet.)
Hey presto, abortion is effectively illegal in Texas. I had always figured that sooner or later Roe v. Wade was getting overturned by this court. But I did not think that they would do it through granting vigilantes and bounty hunters a wide-open route to file nuisance lawsuits by the millions. Basically Texas is saying “we’re allowed to violate the Constitution, so long as we deputize private citizens to do it,” and the Court is agreeing.
The precedent set here is incredibly alarming. Aside from the dozens of states that are already planning to ban abortion in the same fashion, the justices are telling conservatives they can pass basically any unconstitutional law they want, and “the Supreme Court will pretend to be unable to block them,” as Adam Serwer writes at The Atlantic. And as The New York Times’ Jamelle Bouie points out, this kind of private law is a disturbing echo of cases in the 1870s and 1880s in which the Supreme Court struck down laws protecting African-Americans’ civil rights by pretending that Congress had no power to ban racist acts by individuals (up to and including mass murder). A key pillar of what would later become Jim Crow was white terrorists enforcing racial subordination outside of the formal legal system. Who knows what the court has unleashed now?
The way this decision was released is evidence of malign intent. Nobody put their name to the opinion because they know it is complete bad faith B.S. The fact that they quietly released it at midnight shows that they know a total abortion ban is hideously unpopular — polling at just 19 percent support according to Gallup.
In Calvinball, famously the rules are made up as you go along, and you can never play it the same way twice. (Apologies to Bill Watterson for soiling his whimsical creation.) It thus goes without saying that the hacks on the court will not allow liberal states to fight fire with fire — by mandating a coronavirus vaccine by putting a $10,000 bounty on the unvaccinated, for instance. That will be unconstitutional because, um, the Eighth Amendment? We’ll get back to you.
Legally, this decision has all the legitimacy of a bucket of warm spit. Democrats would be equally justified in passing a law legalizing abortion, declaring Marbury vs. Madison wrongly decided, and instructing the federal bureaucracy to ignore any Supreme Court orders to the contrary. Or President Biden could declare this Supreme Court dissolved, recess-appoint a new one, and send in the Secret Service to change the locks on the court building. After all, it never says you can’t do that in the Constitution.
Those would be pretty stark violations of traditional conceptions of precedent and the rule of law. But so is this decision from the Supreme Court (along with many others). Their power as an unelected super-legislature relies on everyone else agreeing to defer to the arbitrary decisions they force on us all.
Now, doing so would mean invalidating the few remaining shreds of positive decisions resulting from judicial fiat. But as we see today with abortion rights, those are vanishingly rare and are already in the process of being rolled back in any case. Better for constitutional rights to be protected by the legislature, which is much better-equipped to enforce them in any case. Time to put the Supreme Court back in its place.