Tuesday, Sept. 7, 2021 | 2 a.m.
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A Texas law banning most abortions went into effect Wednesday. By refusing to act on an emergency petition that would have blocked it, the Supreme Court did not overturn Roe v. Wade, but it rendered that precedent, at least for the time being, irrelevant.
There’s a sinister brilliance to the way this whole thing has gone down. Texas fashioned an abortion prohibition whose bizarre, crowdsourced enforcement mechanism gave conservative courts a pretext not to enjoin it despite its conflict with Roe. And the Supreme Court has made Roe momentarily useless without sparking the nationwide convulsion that would have come from overturning it outright.
The Texas law, known as Senate Bill 8, is now likely to be copied by conservative states across the country. As long as it stands, abortion in Texas is illegal after a fetal heartbeat is detected, usually around the sixth week of pregnancy, or about two weeks after a missed period. There is no exception for rape or incest.
But perhaps the most shocking thing about SB 8 is the power it gives abortion opponents — or simple opportunists — over their fellow citizens. The law is written so that they, not the police or prosecutors, get to enforce it, and potentially profit off it. Under SB 8, any private citizen can sue others for “conduct that aids or abets the performance or inducement of an abortion.”
Pregnant women themselves are exempt, but anyone who helps them, including clinic staff, friends and family, nonprofits that help fund abortions, and even taxi drivers can be held liable. If the people who file lawsuits win, they’re entitled to attorney’s fees and at least $10,000. If they lose, they’re out nothing but whatever it cost to bring the suits, because defendants can’t recoup their attorney’s fees.
The law’s procedural trickery has so far kept it from being enjoined, though the Supreme Court could still decide to act. As legal journalists Dahlia Lithwick and Mark Joseph Stern wrote in Slate, “Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists.” It is, they wrote, “an Escher staircase for litigators.”
It is also an outgrowth of a Republican Party that increasingly encourages vigilantism.
Today’s GOP made a hero out of Kyle Rittenhouse, the young man charged with killing two people during protests against police violence in Kenosha, Wisconsin. Leading Republicans speak of the Jan. 6 insurgents, who tried to stop the certification of an election, as martyrs and political prisoners.
Last year, Sen. Marco Rubio praised Texas Trump supporters who swarmed a Biden campaign bus, allegedly trying to run it off the road: “We love what they did,” he said. This weekend in Pennsylvania, Steve Lynch, the Republican nominee in a county executive race, said of school boards that impose mask mandates, “I’m going in with 20 strong men” to tell them “they can leave or they can be removed.”
Over the last several years, Republicans have taken a number of steps to legalize various forms of right-wing intimidation. Several states have granted immunity to drivers who hit people protesting in the street. In some states Republicans have given partisan conspiracy theorists access to election equipment to search for ways to substantiate accusations of voter fraud. They’ve also passed laws empowering partisan poll watchers, who have a history of intimidating both voters and election workers.
The Texas law should be seen in this context. It deputizes abortion opponents to harass their enemies. Texas Right to Life has already launched a “whistleblower” website where people can submit anonymous tips. “One of the great benefits, and one of the things that’s most exciting for the pro-life movement, is that they have a role in enforcing this law,” John Seago, the group’s legislative director, told CNN.
Once the lawsuits start, they can be challenged in court. But by then, both people and organizations might be ruined by legal fees. In a press call Wednesday, Marc Hearron, a senior counsel for the Center for Reproductive Rights who represents some of the abortion providers fighting the law, explained how SB 8 could enable a legal bombardment.
“The law allows any individual citizen who lives in Texas to bring a suit in their own county, and the courts are blocked from actually transferring that case to a more appropriate venue. So you could have hundreds, thousands of cases, filed across the state, over the same abortion or a handful of abortions,” he said. Even if defendants win every case, said Hearron, the burden of having to defend themselves in multiple courts “threatens to stop the provision of abortion access across the state.”
So even complying with the law isn’t enough to protect abortion providers. On Tuesday, the Fort Worth branch of Whole Woman’s Health, a chain of abortion clinics, stayed open late into the night to take care of desperate patients before the law went into effect, completing a last abortion at 11:56 p.m. Now, like other clinics in the state, it will perform abortions only when there’s no heartbeat. There’s little to stop people from suing anyway.
“People are afraid,” Amy Hagstrom Miller, Whole Woman’s Health’s president and CEO, told me. “They’re afraid of the surveillance and the harassment that now has this sort of huge power behind it. They’re unfortunately kind of used to the picketers screaming at them and writing down their license plates. But now these folks have this whole tool chest full of ways that they can harass them.”
Even if SB 8 is eventually knocked down, it’s already sent a message about who the Republican Party intends to put in charge of the rest of us.
Michelle Goldberg is a columnist for The New York Times.
