Texas’s new anti-abortion law is simply bizarre.
It confers standing on the general public to sue anyone who seeks an abortion, or aids anyone who does, after 6 weeks of pregnancy.
This means a complete stranger can sue someone they don’t know and have never met for trying to have an abortion, and collect a $10,000 bounty from that person for doing so. They can sue the doctor and nurse. They can even sue the Uber or Lyft driver who takes the person to an abortion clinic.
There has never been anything like this in American law. In the past, you’ve always needed a personal stake in litigation to get into court. For example, by arguing you’re the father of the unborn child in question. (This dispute was resolved against dads; they have no standing, i.e., it’s none of their business.)
This legal doctrine is called “standing to sue,” and it’s integral to jurisdiction. No standing, no jurisdiction. And, by the why, that’s a pretty good way of explaining how legal standing works: You either have it, or the entire matter is none of your business.
The Texas law doesn’t eliminate the standing requirement. Rather, it purports to create universal standing by doing away with the requirement to have a personal interest in the case. It makes a woman’s decision to have an abortion everybody’s business, and authorizes them to interfere.
It also puts a bounty on women seeking abortions, and makes every citizen looking for a fast buck a bounty hunter.
It’s legal vigilantism. And unless and until Roe v. Wade is overturned, it creates a cause of action in Texas state courts against individuals for exercising a constitutional right. It’s simply stunning that the justices let this law stand, and did it by summary order, without hearing or arguments.
(The justices who did this may have shot themselves in the foot, if this leads to term limits, which it might.)
Abortion, granted, is an unique issue in U.S. politics. Maybe this legal tactic, if it isn’t nipped in the bud, will be confined to that issue. Either by legislatures not venturing farther afield, or the Supreme Court not allowing them to.
But suppose it isn’t? What if this becomes a precedent for attacking other constitutional rights?
Let’s say, for example, a wingnut legislature passes a law allowing anyone offended by a “Black Lives Matter” sign, poster, or flag to sue. And liberals reciprocate by passing a law allowing anyone offended by a Trump sign, poster, or flag to sue. Is the court going to allow one, but not the other? And at what point do people simply ignore the courts? I suggest the justices think twice before opening this can of worms.
As Robert Reich says, “Americans didn’t always agree with the court’s conclusions, but they respected it. That’s changing now.” Read the rest of what he wrote here. The court’s legitimacy is imperiled, not because of what the justices decided, but how they decided it. As Justice Kagan wrote, “this Court’s … decision-making … every day becomes more un-reasoned, inconsistent, and impossible to defend.” Read article here.
Related stories: Fear grips Texas “teachers, voters, and abortion providers,” who are under “deliberate attack” by far-right politicians; read story here. For more details about how the law works, and was designed to sidestep legal challenges, read Vox article here.