Texas’ bounty-based heartbeat law

America’s unravelling continues, with the Supreme Court declining 5-4 to hear an emergency appeal of Texas’ bizarre and cruel fetal heartbeat anti-abortion law.

Laurence Tribe has written about what the law’s bounty system will do:

It wasn’t just Roe that died at midnight on 1 September with barely a whimper, let alone a bang. 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.

That, after all, is how the new Texas law works. Its perverse structure, which delegates to private individuals anywhere a power the state of Texas is forbidden to exercise itself until Roe is overruled, punishes even the slightest form of assistance to desperate pregnant women. Doctors, family members, insurance companies, even Uber drivers, are all at risk if they help a woman in need. And the risk is magnified by the offer of a big fat financial reward for whoever successfully nabs a person guilty of facilitating an abortion once a heartbeat can be detected, typically six weeks after a woman’s last period, well before most women even know they are pregnant. There is not even an exception for pregnancies resulting from rape or incest. No law remotely like this has ever been allowed to go into effect.

The prospect of hefty bounties will breed a system of profit-seeking, Soviet-style informing on friends and neighbors. These vigilantes will sue medical distributors of IUDs and morning-after pills, as well as insurance companies. These companies, in turn, will stop offering reproductive healthcare in Texas. As of a minute before midnight on 31 August, clinics in Texas were already turning patients away out of fear. Even if the law is eventually struck down, many will probably close anyway.

Worse still, if women try to escape the state to access abortion services, their families will be on the hook for offering even the smallest aid. If friends or family of a woman hoping to terminate her pregnancy drive her across state lines, or help her organize money for a plane or bus ticket, they could be liable for “aiding and abetting” a now-banned abortion, even if the procedure itself takes place outside Texas.

Adding insult to injury, if a young woman asks for money for a bus ticket, or a ride to the airport, friends and parents fearful of liability might vigorously interrogate her about her intentions. This nightmarish state of affairs burdens yet another fundamental constitutional privilege: the right to interstate travel, recognized by the supreme court in 1999 as a core privilege of federal citizenship.

It’s a heartless and unfeeling religious morality that sees this kind of harassment as desirable. The Supreme Court’s conduct will also further erode its own position as a unifying public institution and legitimate arbiter of constitutional grievances. When people lose faith in unifying institutions — and in the perception that there are legitimate avenues for pursuing their interests — it threatens complete breakdown in the country’s self-understanding as one polity, and further progression into settling questions of policy and law by force rather than through reason and democratic debate.

25 thoughts on “Texas’ bounty-based heartbeat law”

  1. Even as I know that things aren’t really better now, there had been some relief from that specific kind of stress in recent months. And so maybe the worst part about sitting with the feeling—that “oh right, this is what it felt like under Trump”—was the realization that this was the entire plan all along. This exact moment is why enough people held their noses and voted for him, and it’s a reminder that the consequences are here to stay


  2. Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks but does not call on state officials to enforce its restrictions.
    Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.


  3. But what was new about the Texas bill is its invitation to its residents to become vigilantes, bounty hunters and snitches. This will likely throw a woman who suspects she is pregnant into a hideous state of fearful secrecy, because absolutely anyone can profit off her condition and anyone who aids her, from the driver to the doctor, is liable. It makes pregnancy a crime, since it is likely to lead to the further criminalization even of the significant percentage of pregnancies that end in miscarriage. It will lead women – particularly the undocumented, poor, the young, those under the thumbs of abusive spouses or families – to die of life-threatening pregnancies or illicit abortions or suicide out of despair. A vigilante who goes after a woman is willing to see her die.


  4. A very sad day indeed in Texas! A judge or any man has no right to decide what a woman should or needs to do with her own body. It is hardly a joyful choice. America continues to shock and frighten me.

  5. Amid the wave of excitement among conservative organizers over the prospect of reversing access to abortion for the first time in nearly 50 years — since Roe v. Wade affirmed a constitutional right to the procedure in 1973 — there are growing fears about how the conservative legal movement will fare if its own appointees on the bench stop short of dismantling the landmark abortion ruling.

    “There are a lot of conservatives who will wash their hands of the whole enterprise if conservatives don’t come out the right way on these cases,” said Mike Davis, a Senate Judiciary Committee aide who founded the Article III Project, a conservative judicial advocacy group.


  6. This is a cataclysm of immense proportions. And if you think the right will stop here, you are terribly mistaken. They won’t be content to leave the matter to the states. Given that half the states will legalize abortion rights, including most of the high-population ones, that’s still a lot of baby killing to stop.

    No—after Roe is overturned, the next push, many suspect, will be for a federal law recognizing fetal personhood. That happens only if the Republicans retake the House and Senate. That can be stopped, but there’s only one way to do it. If you still think voting doesn’t matter, then move to a country where you can’t. Which might be this one, sooner than we think.


  7. In the forthcoming decision in Dobbs v. Jackson Women’s Health Organization, the Court is widely expected to overturn or severely undermine its abortion-rights cases, Roe v. Wade and Planned Parenthood v. Casey. In fact, following the comments of the six conservative Justices at the oral arguments in December, the strength of this expectation has spurred state legislative efforts to proceed as if Roe were already gone. A handful of states have passed laws, like the Mississippi law at issue in Dobbs, that ban abortion after fifteen weeks of pregnancy, in violation of precedents establishing that abortion cannot be banned before “viability,” at around twenty-four weeks. (On Thursday, Florida became the most recent.) Some of the laws have been blocked by the courts, but, if Mississippi prevails, the states expect to be free to enforce these bans.

    In the forthcoming decision in Dobbs v. Jackson Women’s Health Organization, the Court is widely expected to overturn or severely undermine its abortion-rights cases, Roe v. Wade and Planned Parenthood v. Casey. In fact, following the comments of the six conservative Justices at the oral arguments in December, the strength of this expectation has spurred state legislative efforts to proceed as if Roe were already gone. A handful of states have passed laws, like the Mississippi law at issue in Dobbs, that ban abortion after fifteen weeks of pregnancy, in violation of precedents establishing that abortion cannot be banned before “viability,” at around twenty-four weeks. (On Thursday, Florida became the most recent.) Some of the laws have been blocked by the courts, but, if Mississippi prevails, the states expect to be free to enforce these bans.


  8. Neal Katyal, a former US acting solicitor general who has argued many cases before the supreme court, tweeted: “I’ve quickly scanned the draft opinion and it appears legitimate. This means there was a preliminary vote to fully overrule Roe v Wade and that a majority of the court agreed.”

    He added: “There are lots of signals the opinion is legit. The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him. It’s 60+ pages long. If this is a deep fake, it would require a state actor or someone like that. I can’t imagine that.


  9. But that’s only the beginning of the end. If the reasoning of the draft becomes the majority opinion—and it is worth stressing that this is by no means assured, since it is a draft and may well be watered down by other justices—then it applies equally to Obergefell v. Hodges, which held that all marriages (including my same-sex one) are protected by the Constitution; to Lawrence v. Texas, which held that all intimate sexual activity (including same-sex) was too; and to Griswold v. Connecticut, which held that the right to access contraception is as well.


  10. “Good grief,” said the semi-retired labour movement worker. “I did this in the ’70s. Now I’m in my 70s, and I’m still doing the same bloody fight.”

    The fight ahead will see the floodgates opening to a torrent of new feuds in a country already drenched in culture war.

    Abortion laws could soon radically differ from one state to the next, so expect new brawls between states over the cross-state movement of people seeking abortions, payments for the procedure and abortion pills.


  11. The increasingly draconian measures enacted or simmering at the state level — outright bans, attempts to ban pregnant people from traveling out of state for abortions, attacks on the “morning-after” pill — reflect a militancy, or extremism, that is about to become a force across the Republican field. The same polarization that has effectively weeded out pro-abortion rights Republicans and anti-abortion Democrats in Washington means that GOP candidates will be positioning themselves harder and harder to win the support of social conservatives, for whom “leave it to the states” will be weak tea.


  12. Clarence Thomas Will Wipe Out Marriage Equality and Contraception Next

    The right-wing justice has invited conservatives to challenge these long-established rights in court.

    Can Americans actually trust the Supreme Court to stop with Roe and go no further? According to Thomas, the answer is “no.” The court’s seniormost justice’s concurring opinion in Dobbs urges his colleagues to overturn all of the court’s substantive due process rights. These would include Griswold, Lawrence, Obergefell—all of which Thomas specifically named in his opinion—and, by extension, other landmark rulings that shape Americans’ everyday lives and liberties.

    In his concurrence, Thomas agreed with Alito that Dobbs itself did not directly threaten those precedents. “The Court’s abortion cases are unique, and no party has asked us to decide ‘whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,’” he wrote, quoting from his past writings. “Thus, I agree that ‘nothing in [the court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.’”

    But this agreement was more procedural in nature than anything else: Thomas wrote that nobody had asked the court—in this case—to overturn anything else but that, in his view, they should do so at the next available opportunity. “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he wrote, quoting again from his previous writings. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

    “Correcting the error,” as Thomas put it, would have dramatic implications for American life. Without Griswold, states would be free to ban contraception, even for married couples. Without Lawrence, police could arrest people for engaging in sexual activity previously outlawed by so-called “sodomy laws.” (Though this would primarily affect people in same-sex relationships, it could also conceivably apply to a significant number of heterosexual couples as well.) And without Obergefell, states would once again be free to deny Americans the right to unite themselves in marriage to the person they love.

  13. Because, Happy Women’s Equality Day, women are taking him up on the offer. One analysis of the Kansas’ voter registration list showed that in the week after Dobbs, more than 70 percent of newly registered voters in that state were women. Those numbers, according to an Upshot analysis of 10 states with available voter registration data, show consistently higher registration for women after the Dobbs leak in May. As Jennifer Rubin recently noted, The Philadelphia Inquirer reported that, “62 percent of women registering since Dobbs registered as Democrats, 15 percent as Republicans and that 54 percent were younger than 25.” And a Pew Research Center poll indicates that “a majority of registered voters (56 percent) say the issue of abortion will be very important in their midterm vote, up from 43 percent in March.” Tom Bonier, CEO Of TargetSmart recently posted on Twitter: “We are seeing early signs of what could lead to a huge increase in women voting in November. …This surge is young and female.” Both Mitch McConnell and RNC Chair Ronna McDaniel are panicking about the GOP’s odds in Congress, directly connected to fundraising around abortion.


  14. If this all sounds a little overstated, consider one example of how disruptive the court’s sprint to the right has been. Perhaps the most famous facet of legal education is the bar exam, which almost every prospective lawyer must take to practice law. The exam does not incorporate the Supreme Court’s most recent decisions; those taking the exam in 2022 were not tested on 2022 rulings. That means exam takers must pretend U.S. law was static over the previous year, or risk answering questions incorrectly—by asserting, for instance, that abortion access and Miranda warnings are still a constitutional right. The more the law shifts in any given year, the more confusing the test. By next year, however, the 2022 term will be incorporated into the exam. Consider what this means for a student who took Constitutional Law in their first year of law school: The rights they learned are affirmed under the Constitution are no longer protected by the time they’re entering the field.


  15. Whoever is the GOP nominee will face an electorate that has so far handed anti-abortion advocates a series of stinging defeats since the Supreme Court decision in Dobbs v. Jackson last summer. In the immediate aftermath of the court’s ruling, Kansans voted overwhelmingly to keep abortion legal in the state. In November, Michiganders at the ballot box enshrined abortion access in the state constitution. This week in Wisconsin, liberal justice Janet Protasiewicz started her term on the state Supreme Court after winning a spring race, during which she campaigned on protecting abortion access.

    The enthusiasm displayed by abortion-rights activists in the past 12 months will be tested again on Tuesday when Ohioans will decide whether to raise the threshold for passing a constitutional amendment, a referendum that would have significant implications for a fall ballot question ensure “every individual has a right to make and carry out one’s reproductive decisions.”


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