What if the Supreme Court approved a new kind of weapon in the culture wars but only one side used it? With Idaho last week becoming the second state to pass a bounty-style abortion ban, it seems this is exactly what’s happening. Red states are lining up to copy the framework of the law, while blue states stand by the wayside as abortion rights are dismantled.
The new type of law was pioneered by Texas in the form of S.B. 8. S.B. 8 bans abortions at six weeks, something many states have tried to do. What makes S.B. 8 so unusual, though, is its enforcement mechanism. Unlike every other abortion ban, which use criminal or licensing law to enforce the restriction, S.B. 8 uses civil lawsuits that literally anyone can file. Thus, under S.B. 8, if someone gets an abortion after six weeks of pregnancy, anyone in the world can go into Texas state court to sue the abortion provider, or anyone who aids or abets the provider, for $10,000 or more.
It was quite clear to observers just how pernicious this law was. As I wrote last May, the law’s new approach was “breathtaking” because liability would be virtually endless and the law was intentionally designed to evade review. Two of the most respected legal scholars in the country went even further in The New York Times, calling the law’s provision placing enforcement in the hands of private citizens a “fundamental inversion of how our constitutional system works.”
One might expect such a dangerous law to incur the wrath of the Supreme Court. Yet, so far, the justices have shown no interest in stopping it. They have considered several emergency and fast-track challenges to S.B. 8, and in each one they have either avoided the issue or claimed they are helpless against this unique provision. In December, they ruled there might be a very narrow challenge against state licensing officials, arguing that these officials have a role in enforcing SB8. However, that possibility was stymied in March when the Texas Supreme Court, the final authority on the meaning of Texas law, clarified that such officials actually have no role in enforcing the law. A few separate challenges to S.B. 8 remain in federal court, but the Supreme Court has essentially thrown up its hands and given its blessing to this new type of enforcement mechanism. The liberal justices, joined by Chief Justice Roberts, have dissented from these rulings, calling attention to the harm that these types of laws cause, but to no avail against the Court’s conservative majority.
With the Court so far giving S.B. 8-style laws the green light, one might expect legislators of all stripes to use this new tool to accomplish their goals. After all, if Texas can ban abortion at six weeks with S.B. 8, then liberal states should be able to go after their pet issues — guns, corporate campaign donations, religious exemptions to anti-discrimination law, protests outside abortion clinics, and more.
This was exactly the fear that prompted a pro-gun rights organization to write a brief to the Supreme Court supporting the S.B. 8 challengers. “If Texas’s scheme for postponing or evading federal judicial review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights,” the group wrote in the brief, noting how liberal states could use the mechanism to “insulate … future efforts to suppress the right to keep and bear arms.”
However, so far, the group’s fears have been unfounded, as liberal states have shown almost no interest in taking advantage of the Supreme Court’s unwillingness to block the law. There’s a bill in California that would allow private lawsuits over sales of assault weapons, but it’s gone nowhere in the state legislature. Other than that, there’s been nothing. Liberal states have looked at this new approach to getting their way and said, no thanks.
Red states, on the other hand, have plowed forward with enthusiasm. The law Idaho Governor Brad Little signed last week is the first copycat S.B. 8 provision. This law, scheduled to take effect in late April, is narrower than S.B. 8 in that it only allows the patient, the person who impregnated her, and certain family members to sue the abortion provider and anyone who helps. However, it imposes even greater liability, $20,000 per lawsuit. As a result, an abortion provider who violates the law could be on the hook for hundreds of thousands of dollars if the patient has a large family and they all sue individually.
Many other states are waiting in the wings to follow suit. Similar bills in Tennessee and Oklahoma are making their way through the legislature, and several more states have introduced bills that do the same. Missouri has a unique bill that, using S.B. 8’s enforcement mechanism, would ban travel to get an abortion out of state.
These Republican-controlled states have been emboldened by the Supreme Court giving the go-ahead to this civil bounty mechanism. They have learned the lesson that this new enforcement system is as yet unstoppable in the courts, and they are racing to take advantage. Liberal states, meanwhile, have seen the effectiveness of S.B. 8 and responded with near silence. In other words, in the war of constitutional hardball, one side keeps developing new, more effective weapons, while the other side unilaterally disarms itself.