In “The Origins of Totalitarianism,” Hannah Arendt observed the early tendency of a totalitarian regime to draft private citizens to conduct “voluntary espionage,” so that “a neighbor gradually becomes a more dangerous enemy than officially appointed police agents.” Echoes of this fear could be felt in the dissents from the Supreme Court’s decision on Wednesday not to block enforcement of a Texas law that prohibits abortion after roughly the sixth week of pregnancy. The statute, enacted in May, authorizes citizens to file a lawsuit against a party that performs or even unintentionally “aids or abets” such an abortion, and to exact damages of at least ten thousand dollars for each forbidden abortion from that defendant if they win the case. As Justice Sonia Sotomayor put it in her dissenting opinion, “The Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Chief Justice John Roberts and Justices Stephen Breyer and Elena Kagan also dissented; each penned dissenting opinions emphasizing the novel structure of the legislation, which delegates enforcement to members of the general populace.
Giving each ordinary citizen a financial incentive to identify and report abortions is a way of birthing a new reality, in which any individual’s abortion becomes a matter in which every other individual has a personal interest. That world-bending move simultaneously accomplished a legal work-around to prevent federal courts, including the Supreme Court, from stopping an unconstitutional statute from going into effect—a scheme so clever that, once you’ve seen it, you wonder at how it hasn’t been attempted before.
It is indisputable that the Texas abortion statute violates Supreme Court precedents, namely Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. According to the Court’s abortion cases, a state may not place an “undue burden” on the pregnant individual’s choice to have an abortion until the point of “viability”—around twenty-four weeks. Knowing that the abortion restriction brazenly violated federal constitutional law, the Texas legislature fashioned the statute to complicate or even stymie the individual’s ability to seek relief from federal courts. In order to block the enforcement of a statute, a court must issue an injunction. The way for a party who may be harmed by the law’s enforcement to obtain such an injunction is to sue a state official whose job it is to enforce that law, and request that a federal court enjoin the official from enforcing an unconstitutional statute. But here, by Texas’s design, the statute does not authorize a state official to enforce it. Instead, the threat of enforcement comes from “any person, other than” a state official.
In July, abortion providers nevertheless filed suit against various Texas officials and one private citizen to challenge the statute as unconstitutional. The providers then requested a preliminary injunction to block any enforcement while the constitutional challenge to the law was being litigated. But, while the hearing on the injunction request was pending, the Fifth Circuit inexplicably put the district-court proceedings on hold. With the law scheduled to go into effect on Wednesday, September 1st, the abortion providers then applied, last Monday, to the Supreme Court, on an emergency basis, for an injunction to block enforcement of the Texas statute during litigation in the lower federal courts. Considering the case as part of the Court’s so-called shadow docket—a range of orders and summary decisions, often brief or unexplained—five conservative Justices denied the application on Wednesday, and the abortion restriction is now in effect. Abortion providers who do not want to risk a lawsuit for damages are not providing abortions after the sixth week of pregnancy, when more than eighty-five per cent of abortions in the state are performed—a blatantly unconstitutional result.
Though many have viewed the Court’s decision as an indication that it will overturn Roe v. Wade—even as early as this term, in a case concerning a Mississippi abortion restriction—that’s not necessarily the case. In the decision, the Court’s majority said that the providers had raised “serious questions regarding the constitutionality of the Texas law,” and that it was denying their application not based on any conclusion about the law’s constitutionality but because it “presents complex and novel antecedent procedural questions.” Namely, it remains unclear who, if anyone, is a proper defendant to sue to challenge this law, and thus whether the suit itself could be heard in federal court; as a result, the Court could not say that the plaintiffs had a strong likelihood of success under the Court’s precedents. By relying on those procedural questions to justify not blocking enforcement of the Texas law while lower courts consider them, the Justices played directly into the Texas legislature’s ingenious strategy.
As a result of the Court’s decision, the threat of private citizens’ enforcement of the law is deterring many providers from performing prohibited abortions. Meanwhile, though, some will perform them and be sued by private parties. Defendants in those lower-court suits will of course argue that the Texas law under which they are being sued is unconstitutional. Under the Supreme Court’s abortion precedents, providers will then prevail. But all of this could easily take several months and most certainly will involve appeals, while many individuals’ abortion rights continue to be violated, with serious and irreversible consequences. In the meantime, the case in which the Supreme Court denied the emergency injunction will continue to be litigated in the lower courts, which will consider the issue of whether that suit is procedurally proper given the structure of the Texas statute—only if it is will they apply the abortion precedents to declare the law unconstitutional. While these cases are pending, other states can pass and enforce copycat legislation. So far, legislators in Arkansas, Florida, South Dakota, Indiana, Oklahoma, and Idaho have announced plans to introduce similar bills.
The fact that the law undoubtedly disobeys Supreme Court precedents is not the most outrageous part of it. In his dissent, Chief Justice Roberts emphasized that the state engineered the statute to evade judicial intervention under legal doctrines governing what cases federal courts may even hear. Not only is the scheme a model for other states in the abortion area, but, as the Chief Justice astutely noted, it may be a “model for action in other areas.”
Not all of the other possible areas stand to be exploited by conservative legislatures. In fact, with the federal courts filled with Trump appointees and the Supreme Court likely controlled by a conservative majority of six Justices for at least the next decade, Texas’s scheme could give Democrats direct inspiration for legal guerrilla warfare—if the enforcement mechanism it innovates is not ultimately found unlawful. In an article in Columbia Law Review, from 2000, Myriam Gilles, a scholar of civil litigation and procedure, argued in favor of “deputizing” private citizens to sue to enforce civil rights. This progressive counterpart to the Texas scheme makes conceivable reform in myriad areas: private citizens who are not themselves injured parties might be given the incentive to sue other private parties for, say, violating civil rights, polluting the environment, committing sexual assault—or even not wearing masks, social distancing, or getting vaccinated.
A move to deputize private citizens to enforce those underlying goals would undoubtedly trigger conservative objections; the schemes might be described as interfering with individual liberties, or even as being communist, totalitarian, and counter to the American way. The tenor of the Chief Justice’s dissent in the Texas abortion case makes it apparent that at least one conservative Justice understands that the legitimacy of the courts depends on maintaining that a strategy to insulate abortion restrictions from judicial review is equally unlawful as similar strategies that might aim to insulate liberal policies. But Justice Kagan’s sharp dissenting opinion reminded us that optimism about the Court’s consistency is difficult, as she called the majority decision “emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” Indeed, the same Justices who were unwilling to use the Court’s shadow docket to stop the violation of abortion rights were quick to intervene in April when religious liberty was threatened, granting an injunction against the California governor’s COVID order limiting the size of gatherings. Justice Sotomayor also previously pointed out the inconsistency of the Court’s routine refusal to stay executions while granting stays in “one emergency after another” claimed by the Trump Administration, writing that “this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.”
On Friday, the Senate Judiciary Committee announced a hearing to address these patterns, on “the Texas abortion ban and the Supreme Court’s abuse of its ‘shadow-docket.’ ” It would not be surprising if the extremity of the Texas abortion-law experience leads to more liberal support for reforming the Court, through proposals such as adding more Justices or imposing term limits on them. Meanwhile, speculating about whether Democrats could enact their policy agendas by attempting the same moves as Republicans to evade judicial review only underscores the threat that the Texas statute poses to the rule of law, far beyond the issue of abortion.
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