The Supreme Court’s refusal to block SB8 was a lawless act.
Many diaries will be written about how poorly-argued, irrational and destructive to women was the Supreme Court’s refusal to block the anti-abortion bill SB8 [1]. However, the Supreme Court’s ruling was also lawless. It is this desecration of the rule of law that is both most dangerous and potentially the undoing of SB8.
Laws in democracies are based on stable principles that apply to everyone. In dictatorships and other authoritarian states, laws never apply to those in power, because they change the rules that they call laws to suit their convenience. But just as the law of gravity applies to all objects with mass, the rule of law can only exist in democracies, where no one can exempt him/herself from the law.
And so the most troubling feature of the Supreme Court’s refusal to intervene against SB8 was a clear sign that the United States is drifting into authoritarianism, since the action broke the rules of our legal framework in four ways:
First, our Constitution requires due process. But the way in which the emergency appeal to the Supreme Court arrived there was through denial of due process:
On Friday night, the 5th U.S. Circuit Court of Appeals canceled a hearing planned for Monday, at which more than 20 abortion providers had hoped to persuade a federal district court in Austin to block the law from taking effect [2].
The Supreme Court then extended the denial of due process by refusing to hear arguments.
Second, there are rules governing who may initiate legal process. This is called locus standii, or “standing:”
Standing in State Court
A state's statutes will determine what constitutes standing in that particular state's courts. These typically revolve around the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable.
Standing in Federal Court
At the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes [3]
And yet SB8 allows anyone at all to bring a lawsuit against someone who agrees to help a woman obtain an abortion after 6 weeks (even if they take no action in that direction!) So this legislation clearly violates our basic legal framework.
The standing that SB8 proovides is so broad that it even allows a criminal to sue to prevent his victim from mitigating the harm he has caused:
if a Texan becomes pregnant as a result of rape and is provided information about how to obtain an abortion by a rape counselor, the rapist {unless previously convicted of the crime [5]} could sue that counselor if the survivor had what the state deems an “illegal” abortion. The rapist could also sue the doctor who provided the abortion and anyone else — like a family member — who supported them in getting the abortion.
What’s next? A “law” to allow arsonists to sue fire departments?
Finally, SB8 is lawless because it uses private citizens to enforce other Texas law. The text of SB8 reads [1]:
SECTION 2. The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother's life is in danger.
Since the legislative history described there makes it plain that SB8 is designed to create a vigilante form of enforcement of an unconstitutional Texas statute, it is by definition outside of the system of law.
Many will focus on the considerable harm that SB8 does to women, to doctors, and to the general civility required for a society to function. But the harm that SB8 does to the rule of law is even greater than that. This is yet another sign that the Supreme Court must be restrained from the authoritarian path that it is on and brought back into the system of law.
Fortunately, as Elizabeth Warren has said [6], the Congress could act today to make Roe the law of the land. All it takes is for Democrats to act together, end he filibuster, and defend the rights of the American people.
1. capitol.texas.gov/…
2. www.texastribune.org/…
3. www.law.cornell.edu/…
4. spectrumlocalnews.com/…
5. spectrumlocalnews.com/…
6.