Open Letter

Texas Statute on Abortion and its Vigilante Enforcement Defile Constitution 

June 28, 2021

September 15, 2021

Editorial credit: Vic Hinterlang

Prior to the end of the Civil War, hundreds of thousands of notices were placed in newspapers across the country to entice individuals to find and capture slaves who had “run away from their masters.”

For example, twenty-five years before he would become President of the United States, Andrew Jackson placed an ad in the Tennessee Gazette offering to pay $50 plus reasonable expenses for the capture of his escaped slave, with an added bonus payment for the infliction of lashes. In 1810, a group of slave owners in New York formalized the effort to hunt down escaped slaves by forming “The Society of Negroes Unsettled” to pay people to assist in their capture. 

These American bounty hunters profited by causing pain and suffering to a class of humans whose shared characteristic was their skin color, marking a shameful time in our nation’s past.

In a startling throwback to that reprehensible period, Texas has enacted a law that creates a modern-day bounty hunt against anyone who assists a woman seeking an abortion. The law endangers the health and well-being of women and effectively ends abortion in Texas.

Women are prohibited from seeking an abortion if a fetal heartbeat is detected. To determine this, her physician is required to perform a test “appropriate for the estimated gestational age.” At early stages of pregnancy, the acceptable medical test best able to detect a heartbeat is an invasive and uncomfortable vaginal ultrasound procedure. 

The authors of this legislation knew that a bill banning abortions at such an early stage of pregnancy would violate the Supreme Court decision in Roe v. Wade. Under Roe, the state cannot impose requirements to protect a fetus until viability, which is months past the initial detection of a fetal heartbeat. Accordingly, the Texas drafters sought to frustrate a constitutional challenge by prohibiting any enforcement from state actors and, instead, turns citizens into vigilantes. 

Texas has deputized the public to sue anyone who aids and abets a woman seeking an abortion. The successful plaintiff will be awarded $10,000 plus their attorney’s fees. In an unusual asymmetric twist, if the plaintiff loses, defendants are explicitly prohibited from recovering their own legal fees from the plaintiffs.

In effect, Texas has created a vicious vigilante system that victimizes women. Its insidious enforcement scheme sets the stage for the creation of a predatory and ruthless industry that will enrich those who successfully litigate against anyone offering assistance to a woman seeking a constitutionally-protected health procedure in the United States.   

Demonstrating just how pernicious this law is, immediately after the Texas bill passed and months before it went into effect, an organization created a whistleblower website to make it easy for people to report those who may have aided a woman seeking an abortion, thereby facilitating a prospective  bounty. 

As historian Heather Cox Richardson stated, the Texas law is about far more than abortion: “it is about undermining civil rights decisions made by the Supreme Court during the 1950s, 1960s, and 1970s.” But this did not matter to the United States Supreme Court which, on a 5-4 vote and through use of its “shadow docket”, refused to block the law from going into effect. This swift decision was rendered without the benefit of full briefing or oral argument.

In a scathing dissent, Justice Sotomayor called the law “a breathtaking act of defiance – of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.” She called out the State’s effort to avoid binding precedent by empowering bounty hunters: “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”  

In testimony before Congress, Professor Stephen Vladeck, a Supreme Court scholar and practitioner, highlighted the insidious nature of the “shadow docket” as an increasing form of Supreme Court activity that lacks normal briefing and provides no opportunity for oral argument - conducted “literally and figuratively in the shadows.”

In her separate dissent in the Texas abortion case, Justice Kagan observed: “Today’s ruling illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process.” Lawyers Defending American Democracy agrees with the powerful dissents offered by Justices Breyer, Sotomayor, Kagan, and Chief Justice Roberts. 

The Texas statute is an unconstitutional affront to our democratic principles and the rule of law.

We ask that you join us in condemning the Texas legislature and Governor Abbott for harkening back to a horrific period in American history and creating a new and unconstitutional vigilante system of justice to enforce an unconstitutional law. We note that businesses and organizations are now considering whether to do business in a state that endangers women’s health and is openly inhospitable to the legal rights of women.  

We ask that you join us in applauding the Texas Medical Association for condemning this law. Their strong statement decried the law’s interference with the physician-patient relationship: “The physicians of Texas never thought the day would come when the performance of our oath would create a private cause of action for persons not connected to or harmed by the action.” 

We ask that you join us in asking the United States Congress to codify Roe v. Wade and the 50 years of precedent that allow women autonomy over their own bodies while protecting a mother’s health and the fetus when it becomes viable.

We ask that you join us in encouraging bar associations throughout America to speak out against this unconstitutional law, and to use their legal skills to combat copycat legislation from being enacted elsewhere, as many states have already threatened to do, and to encourage each state to act immediately to protect women’s reproductive rights. We applaud the leadership of the National Association of Women Lawyers and the New York State Bar Association for their statements. We encourage other legal organizations to similarly stand against this injustice.

We ask that you join us in supporting the Department of Justice in its aggressive lawsuit seeking to nullify the Texas statute and prevent its enforcement, as the Boston Bar Association did.

We ask that you request that the Commission on the Supreme Court consider proposals for reform that will decrease the politicization of the Court that is so evident in its ruling on the Texas law.

Similarly, we ask that you join us in speaking out against the Supreme Court’s increased use of a shadow docket that evades rigorous legal analysis and avoids transparency. This is not the way that the highest court in the land should operate. 

Your voice is critical. As Harvard Law Professor Laurence Tribe wrote: “It wasn’t just Roe that died… It was the principle that nobody’s constitutional rights should be put on sale for purchase by anyone who can find an informant or helper to turn in whoever might be trying to exercise those rights.”



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