Fetus Vigilantes Are Unleashed in Texas

I have long believed that abortion is an effective wedge issue for Republicans as long as Roe v. Wade stays in effect. Polls going back years show a reasonably comfortable majority of Americans support Roe and don’t want it overturned. The criminalizers will always vote for politicians promising criminalization. But if states really did criminalize abortion, I suspect the criminalizers would face a backlash they are not now expecting.

Well, that theory may be about to be put to the test.

The Texas law that went into effect today bans abortions very early in pregnancy, with no exceptions for rape or incest. According to Paul Waldman, the law bans abortions six weeks after the first day of a woman’s last period, which in an average cycle would be only four weeks after conception. Many, possibly most, women don’t know they are pregnant at that point.

Worse, the law “establishes a system of legal vigilantism whose purpose is nothing less than terrorizing and financially ruining not just abortion providers but also anyone who helps any woman get an abortion,” Waldman writes.

It allows anyone to sue not just an abortion provider but someone who “aids or abets” an abortion. So for instance, if you give your friend a ride to the abortion clinic, any random person in America could sue you for a minimum of $10,000. Even if you won the case — say, because your friend managed to get in her abortion five weeks after her last period, or because you never gave anyone a ride anywhere — you’d still have the legal bills to contend with.


Weird, huh? Summer Concepcion writes at Talking Points Memo,

As The Intercept’s Jordan Smith notes, typically in civil litigation, the individual suing must have been harmed in some way.

Not only does the law put abortion providers at risk, but also generally anyone who could be classified as “abetting” the act — such as a rideshare driver who takes someone to an abortion clinic, a counselor, a friend who helped pay for it, etc.

Therefore, the law is designed to evade federal court challenges by allowing private individuals, rather than state authorities, to sue the so-called “abettors.”

at Vox also writes that the law was drafted to prevent courts from reviewing it.

The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.

For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.

But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”

Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.

SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law. Checkmate, libs.

Naturally, Texas Right to Life set up a website for people to report anonymous tips of illegal abortion activity. Naturally, since going online, the site has been robustly trolled.

The U.S. Supreme Court refused to grant a request to block the law, so now it’s a law. Still to be decided is a Mississippi abortion case I wrote about several weeks ago. That case is a direct challenge to Roe also. But knowing wingnuts, I do not doubt a whole lot of chubby white men in state legislatures are looking closely at this Texas law and planning to introduce a similar law in their own states. This could get very messy.

13 thoughts on “Fetus Vigilantes Are Unleashed in Texas

  1. We have a loud, angry, and violence minority in our country.  Forced-birthers, anti-vaxers, anti-maskers, climate change deniers, religion pushers, etc.  They are probably represent about 30% of the population but they want to impose their 'values' on everyone.

    We have a significant majority that wants abortion rights, gun purchase vetting, and many other 'policy issues' that they do not get because of the minority.

    We have governments and businesses that bend over backward to coddle the minority to the detriment of the majority.  

    We have Citizens United as the law of the land.  

    Will the majority stand up to the minority?  I doubt it.

    I hope I am 100% wrong because I perceive of a bleak world that my great-grand-children will grow up and live their lives in.

  2. I hope the astronomical, almost inconceivable, amount of hypocrisy, irony, is not lost-in-the-sauce in this situation!

    The same group of mysoginists/bigots, who, because of the pandemic, are being asked to wear masks and/or take a vaccine, and don't want to, are digging in their heels against what are typical actions during a pandemic, and whining, screaming, and shrieking "MY BODY!  MY CHOICE!!!", while at the same time, they're telling women in TexASS (With every Red State soon to follow), "Your body.  MY CHOICE!!!"

    Here's what our Reich-Wingers are stating: "MY BODY!  MY CHOICE!!!" v. "Your body.  MY CHOICE!!! BWA-HA-HAAA!!!!!"

    The hypocrisy is so obvious, it's not just in your face.  It's so far beyond your face, that a glance backward would show the back of your head!

    I truly despise these selfish, stupid, and ignorant bigots!

    I hate hating people.

    Never mind trying to find "The God Gene."

    We desperately need to find "The Empathy Gene."

    If there is one, of course.

  3. The nut jobs are convinced that there were no abortions in America before Roe vs. Wade. The truth is there were few safe medical procedures involving termination of a pregnancy before that. Sepsis, and death were quite common results of homemade abortions and shoddy medical procedures.

    A question John Fugelsang asked was "how will the law prevent rich women from getting abortions?" The answer is obvious to any one with an I.Q. above room temperature in Nome , Alaska in January. The texas law is not intended to inconvenience rich people, just to tickle the fancy of the evangelicals and others who vote and routinely misinterpret the "Buy-Bull".

    Poor women will be the collateral damage in the right wing religious war.

  4. If the SCOTUS doesn't step out from under its shadow docket and put a stop to the "Fetal Snitch Posse" law in TexASS soon, maybe we can get President Biden to authorize flying women who want an abortion out of that stupid state, like we did for refugees carrying SIV's out of Afghanistan.

    I heard the great Elie Mystal on Chris Hayes' terrific show say that President Biden could write some sort of an executive order which would allow him to send Federal agents into TexASS, and protect women seeking abortions.


  5. The lack of standing will kill the law, in spite of the laughable legal obfuscation written into it.

    That said, Congress should get to work on a law limiting the extent to which States can interfere with individual Constitutional rights. A full amendment is not feasible in the near future.

    Medical privacy laws also need enhancement. States should not even know who performs abortions in state, never mind who gets one.

    • I wouldn't be so sure. This is not my area of expertise, but "standing" is not a constitutional right: it's a means to assert constitutional rights at the federal level. States have their own standing rules and Texas has, by this statute, created "standing".

      I frankly don't know what this law will provoke. One thing it should provoke is a massive Democratic response, something the DNC has utterly failed to do for decades now. The DNC has been criminally negligent toward state and local races while the RNC and the state Republicans have danced circles around us. We should never have done so poorly as we did in the House and Senate in 2020. It's embarrassing. We only took the Senate thanks to Trump's antics following the general election. The DNC has to be torn down and rebuilt as an organization dedicated to victory everywhere.

    • The lack of standing will kill the law

       That's my thought also. I can't imagine why they would include such a reckless provision in the law other than to reinforce the idea that at least they are fighting. That belief among their base is one of Trump's power sustaining qualities. To the Christian base it doesn't matter how legally flawed the argument is. What matters is that they believe they have someone in their corner who is fighting for them.

       On its face it is a bizarre concept that attacks the foundations of law by allowing anybody to sue anybody for any reason. It's like they are trying to turn the courts into a free for all where monied people or financial organizations have complete advantage. Again, that's another one of Trump's operational tools. Crush people into subjection by employing expensive litigation.


  6. I would guess there are celebrations of righteousness in some circles over this victory for morality.  It is not.  It is a victory for stupidity and social discord.  

    We are aligning the court and the law with bias toward some religious tenets.  As such, it gives credibility and power to those religions over others who differ.  It is civil authority anointing some metaphysical doctrine over others. It is government meddling in spirituality and religion, which our founders knew needed to be avoided.  The freedom of religion demands a freedom from religion.  Moral religions should know that principle and not try to impose their beliefs on others who are of a different flock.  


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