With the Supreme Court deciding to allow the Texas bill banning abortion to stand, the war over Roe v Wade has officially restarted. It’s an old war, one that had achieved a quasi- armistice many have hoped would endure. But the guerilla fighters leading the war against female sexuality never put down their weapons. Like any such group they’ve slowly infiltrated key strategic positions throughout our federal, state and local judiciaries and legislatures. They have a well-documented strategy to create various inflammatory bills scattered across multiple states, each of which was intended to provide a potential vehicle for the Court to reverse its decades long support for Roe.
Those campaigns have evolved rapidly, with a recent law in Mississippi emerging as the spearhead intended to puncture the historical precedents set by the Court. It was the major battle to come, the one everyone was lining up to fight. The formal phase of that engagement, with written legal briefs by the parties involved, Amicus briefs by others and public oral arguments, questions and answers is still scheduled for this fall with a Court decision likely sometime in the middle of 2022.
But, like well-trained guerilla operations everywhere, they also had a parallel, flanking attack underway. It was launched in Texas and the Texas Taliban were successful, breaking out of the judicial review processes to reach the Supreme Court’s shadow docket well ahead of the main legal and political armies lining up for the Mississippi fight.
Like most guerilla flanking operations, it’s definitely a rag tag affair. The actual legislative text is almost ludicrous in structure and rationale. Even setting aside the specific intent of the bill, the legal structure it envisions and creates is chock full of contradictions and incoherent roles and responsibilities for claimants, defendants and the courts themselves. Most people with any legal background find it hard to take seriously. But, the Court did, and, as a direct result, now we all have to as well.
The bill is clear in stating two core principles. Nothing in the law is intended to directly punish any woman seeking an abortion nor is there any legal “state power” or authority to bring any of the legal actions enabled by the bill. The bill “merely” defines a new class of civil tort liabilities that allow anyone, from any state or country, to initiate civil suits against any Texas citizen or organization that is guilty of causing that tort injury. (While not spelled out explicitly, the law really does allow the actual Afghan Taliban to bring suit in US court against US citizens.) It spells out the rules for those lawsuits, defining the sources of injury and identifying valid and invalid defenses. It places the burden of proof on the defendants, setting a minimum penalty, paid by the defendant, of $10,000 plus legal costs per infraction and not allowing any counter suit or claims for remedies from false charges.
If a woman getting an abortion consults with her husband, clergy, or Doctor; if she posts her hopes and fears on a Facebook page generating an outpouring of emotional support; If she get a ride to the clinic from her husband, a friend, or an Uber/Lyft driver; if she seeks financial assistance from friends and/or places an insurance claim for the procedure — each and every one of those people and organizations can be sued by anybody in the world. They are the defendants. They are the ones guilty of creating this new “injury” to the general public by helping this woman in her time of need.
As ugly as that is, it is even more horrifying to realize it applies equally to a 35 yr. old married woman as a 14 yr. old rape or abuse victim. Just imagine bringing a deluge of legal actions against anybody and everybody who helps that 14 yr. old child cope with her tragedy and trauma.
Under our established legal structures, none of those completely random people bringing actions against these defendants, these friends and associates of the woman or child in question, would be allowed to sue. The courts would simply and immediately assert none of them had incurred any real injury and therefore none have any standing to bring suit.
This new Texas law implies that the simple humanity of helping a pregnant woman inflicts some sort of injury on the entire public that justifies allowing anyone to bring action. However, it then says for each individual action taken by each individual defendant, they are only required to pay one settlement, whichever one makes it through the legal process first. This limit implies that none of the other claimants actually had any legal basis for their individual claims. To make payment to only one entity implies only one entity has been harmed. But since that’s a random individual from across a universe of complainants the entity in question, the injured party, is an unnamed, unidentified blob right up until the first judgement is rendered. The “injured party” of tort law has become a “Schrodinger’s cat” in Texas.
Then there is this curious clause in Section 171.207.G
“This section may not be construed to impose a liability on any speech or conduct protected by the First Amendment…”
Huh? Everything about this legislation creates new liabilities on speech and conduct. Or so it would appear. The “legal” idea here is that since there are no state imposed restrictions there’s no violation of the first amendment. As far as the state is concerned, you remain free to say whatever you please and provide whatever assistance you choose to the woman seeking an abortion. The state is not imposing any restrictions on those behaviors. The legislation merely asserts that those actions, while legal, create injury to the general public enabling each member of the public, as individuals, to seek relief.
These along with several other structures in the bill are intended to place this as a branch of jurisprudence that lies outside our normal judicial hierarchy and concerns. While the theories are wildly creative, their actual verbal construction is incredibly sloppy, filled with inconsistencies and head scratching legal logic. It’s the kind of document that might lead an advisor to a first-year law student to suggest they consider an alternative career.
None of the justices on the Supreme Court is such a rookie. They can all see the hopeless jurisprudence in this bill. I and many others felt certain they’d immediately put a stay on the implementation of the bill and write an opinion that would politely tell their fellow extremists to get their act together and stop being so sloppy. But they didn’t. They accepted the creation of this parallel legal construct enforced by public vigilantes as a potentially viable and credible construct. They allowed the door to a barely imaginable America to remain open. That could still change and, as the rest of this article will make clear, we all need to hope it does so as quickly as possible.
So, what happens next? I think of this in phases. In phase 1 there are about 20 states who are highly likely to consider their own version of this Texas bill. Some of those will proceed to pass such bills. I don’t think any of them will copy the Texas bill exactly. It’s just too poorly drafted for that. But, they all see the new formula and will draft various versions to formalize a new authoritative governing structure that eschews todays legal constructs, replacing them with “citizen based” enforcement. There’s even a proposed new name — they’re being called “Ken and Karen” laws. They provide a vehicle for inflamed factions who have been unable to secure any real traction in our judiciary to create new, non-democratic and non-judicial powers of authority to govern others — to govern the rest of us.
Phase 1 will see those laws propagate to some of those 20 states. The Supreme Court will let them all stand. To do otherwise at this point would raise insurmountable objections. They, the Federalist Society, ALEC and the rest of the anti-Democracy, anti-Women crowd will undoubtedly review the details and working results of these various formulations for this new branch of governance of our nation. The conclusions of those reviews will surface in phase 3.
Before that happens, in phase 2, the Supreme Court will hear the Mississippi case, the originally intended main battleground on abortion. But now they will be hearing that case in a context where at least one, and potentially as many as 20 states will have already effectively repealed Roe. The court may equivocate a bit, but I suspect they’ll formalize a nation-wide decision that effectively overturns Roe. They may choose to do this by placing full legal authority, with no restrictions, in the states. Or, they may leave Roe’s restrictions on procedures in the third trimester as the national rule and eliminate the rights and protections of women in the first trimester. Whether they will subordinate the rights of women to their rapists and sexual abusers, as Texas has done, is unclear.
When that’s done, Texas, along with any of the 20 states that followed their lead, will immediately implement new laws that simply ban abortion altogether. If the Supreme Court fails to elevate the rights of rapists and abusers above that of their victims, they can readily adjust SB8 to focus the wrath of their bounty hunting vigilantes on the friends and supporters of those victims. The states with “trigger” laws that automatically go into effect as soon as Roe is overturned will probably beat them to the punch. Both sets of states will also probably begin testing the limits on forms of punishment for this new class of criminal behavior ranging up to and including the death penalty in states that allow that cruelty. Other states are unlikely to go quite that far, but all are likely to write new abortion laws of some sort to reflect the Courts conclusion. For at least half the country, personal reproductive decisions will shift from being a core right of every woman to a state monitored behavior with dire financial, health and criminal consequences.
That future is not inevitable but seems likely given the signals from our now politically packed Court.
Once they’ve published their conclusion on abortion the Supreme Court may stop at that point. They could leave open the legal standing of the new governance structure created by Texas or they could choose to render a decision on that abomination. If they strike that civic formulation down we will still be left in an appalling, “pre-Roe” state. It will be incredibly ugly but also one many of us are old enough to remember. However, if they leave the door open for that new construct, or even worse, indicate even partial acceptance, we will find ourselves entering phase 3, which is a doorway leading to a nation none of us would recognize.
The key to understanding phase 3 is to realize that this new non-democratic and non-judicial form of governing authority is exactly where the conservative movement has been heading. The unruly mobs that challenged Al Gore’s election, the Tea Party, the militia movement, the “good people on both sides” in Charlotte, the acceptance of the Proud Boys as extended presidential security forces and policing authorities in Portland, the school boards overrun by zealots foaming at the mouth over those who teach the history of racism or mandate masks, the “stop the steal” efforts to overturn the election and the attempted insurrection on Jan 6, are all examples where a newly established branch of governance rooted in the use of “Ken and Karen” quasi-legal constructs to empower radicalized factions and enforced by frenzied vigilantes can find a home.
When Steve Bannon and others talk about “deconstructing the administrative state” this is an example of what they actually mean. The constructs they seek to tear down are the institutions, processes and precedents developed over the centuries to balance the needs and interests of different segments of the public. These traditions have imposed limits on the harms and cruelty that are legally available to the righteous to inflict on the rest of us. For those righteous, any such limits demonstrate an “intolerance” to their desires and beliefs. This new governance structure promises a vehicle to unleash the savagery demanded by those beliefs.
After almost a year of experience with various state versions of these new governance structures, ALEC and the Federalist Society will be ready to act. They’ll be ready to give birth to a newly constructed fourth branch of government that reflects the “best practices” from all these social experiments. Our Executive, Legislative and Judicial arms could be joined by a new partner. This new branch would almost certainly remain at the state level, and then only in places like Texas or Florida, but I’m sure its proud parents will have grand hopes for its development.
The pseudo-legal reasoning behind the creation of this new governing branch will require that it rely completely on vigilantes for enforcement. It may evolve to support those efforts with centralized intelligence gathering and dissemination around its chosen grievances. It’s also likely that some sort of organizational hierarchy would emerge that would, at a minimum, provide some sort of non-democratic and non-judicial decision structure to pick which “Ken and Karen” issues to mobilize its vigilante forces around.
That hierarchy will develop its own rules determining how this form of governance operates in the real world. Whenever state power must be invoked they will be required to continue to adhere to existing legal constructs. When those legal constructs get in the way, they will now be free to eschew state powers and instead create various models of vigilante enforcement. The civil suits used in Texas are only one such tool. There could be any number of other forms including civilian landlord tribunals, arbitration panels comprised solely of clergy members etc. I’m sure some Texas legislator will try to find a collection of grievances they feel can only be addressed through pistols at dawn.
The new organization guiding this process could be either the nucleus of, or an adjunct to, a future version of the Republican Party. It could also evolve naturally from the agenda setters at Fox News, Breitbart or Sinclair Broadcasting. Or, perhaps most likely, it could emerge from a radicalized clergy, from the Evangelicals. There are existing governments like this in the world. Iran has a structure that’s somewhat similar. In their case, the evangelical branch is not junior to the other branches. It’s the other way around. I doubt we’ll ever get to that extreme, but if we allow such a fourth branch of governance to emerge, even at the state level, there’s really no telling where we end up.
This nightmare scenario is obviously crazy and alarmist to the “nth” degree. It won’t happen. Period.
But it could, which only became possible with the Court’s decision to let Texas SB8 stand. The reason so many of us have been shocked is we can see this nightmare quite clearly through this newly opened door. The door’s gatekeepers have allowed it to remain open despite the certainty that they too can see the nightmare. To make this fourth branch of government a reality at the federal level would take a constitutional amendment. But at the state level, all it takes is to continue leaving that judicial door open. So far, this court has indicated the majority are OK doing so. If that continues, the repeal of Roe will be only the first step back into a society governed, at least in part, by the mob rules of violence, terror and religious zealotry.
Or, we can just eliminate the filibuster and fix this mess.