Harvard Constitutional Law professor Laurence Tribe has a plan to challenge the Texas vigilante abortion bounty hunter law. How a Massachusetts case could end the Texas abortion law:
The Supreme Court’s Whole Woman’s Health decision not to block the Texas post-six-week abortion ban has caused terrified abortion providers to shut down despite the ban’s flagrant violation of Roe v. Wade. A particularly chilling aspect of the Texas law empowers any civilian anywhere to sue Texans who aid in an abortion and to collect a bounty of at least $10,000 if they win in court.
To respond to the ban’s violation, Attorney General Merrick Garland should treat bounty hunting under SB-8 as a criminal deprivation of civil rights, leading to possible federal prosecutions under two sections of the Ku Klux Klan Act of 1871. That law was passed to protect the civil rights of previously enslaved Americans who were targeted for extrajudicial violence by white supremacist vigilantes.
But the new Texas law, which other states are rushing to clone, has fatal constitutional flaws — entirely apart from its attack on abortions protected by Roe v. Wade. The court’s notorious five-justice majority, which included all three of Donald Trump’s nominees, suggested that the court hadn’t previously encountered legislative schemes that confer on private individuals the power to veto the provision of lawful services. It purported to be procedurally stymied from blocking the Texas law’s manifest goal of snuffing out abortion services and wrecking the lives of many women during the year or more it will take the court to ultimately strike the Texas law down or admit that it is jettisoning Roe v. Wade.
Not true. And a Massachusetts case established the precedent.
Decades ago, recalling the court’s early 20th-century invalidation of just such schemes in cases involving land use and zoning, we successfully invoked the civil parallel of the Ku Klux Klan Act to prevent the neighbor of Harvard Square restaurant Grendel’s Den from wielding a state-conferred veto power over the issuance of any liquor license within a 500-foot radius. That statute was enacted by Congress specifically to provide a federal judicial remedy for violations of constitutional rights when state judicial remedies were blocked, as they clearly are by the structure of the Texas abortion law.
In an 8-1 opinion by Chief Justice Warren Burger, no liberal himself, the Supreme Court in 1982 held that such veto power could easily be invoked for religious, ideological, or other illicit reasons that could well be undetectable, making the scheme unconstitutional on its face.
That same danger has again reared its ugly head. As with the Massachusetts liquor law, the Texas abortion law delegates quintessentially governmental power to private parties — in Texas, to literally anyone on earth with an objection to abortion, giving that individual or organization the unilateral and unfettered power to inflict criminal punishment on whoever assisted a woman, within the past four years, to terminate a pregnancy without being able to prove that the fetus didn’t have detectable cardiac activity.
In the Grendel’s Den case, in which a church vetoed the restaurant’s liquor license, we sued the state functionaries charged with ultimately handing out liquor licenses or respecting whatever veto was filed. So too here in the Texas case. Anyone threatened with the prospect of paying a bounty of between $10,000 and an unlimited amount (including all attorney fees) to whoever sues them for assisting a woman to end her pregnancy — damages that don’t reflect harm to the bounty hunters and are therefore wholly punitive — could sue the court officer charged with collecting the penalty to prevent that collection from ever taking place. Nothing the Supreme Court said or did in its Sept. 1 midnight decision rules that out. And Supreme Court cases striking down punitive damages that grossly exceed any harm to the plaintiff collecting them are obviously relevant where, as here, harm to the plaintiff is zero.
Someone confronted with the threat of having to pay such a bounty could also sue the bounty hunter directly rather than sue any state official. The reason? That veto-wielder would indisputably be acting “under color of law,” triggering the availability of 42 USC Section 1983, the bedrock for civil rights lawsuits. And any group threatening to go after clinics or others helping women could be sued for damages, including punitive damages, for conspiring to violate a person’s civil rights under 42 USC Section 1985, without having to meet any “color of law” requirement.
Just as the prospect of federal criminal prosecution could make those tempted to invoke the Texas system think twice before becoming bounty hunters, combining that prospect with the knowledge that anyone you sue in Texas to collect a bounty could immediately countersue for double or triple damages should serve to thaw the chill that the Texas Legislature was counting on to stamp out abortions in that state.
In the Grendel’s Den case, the unbridled veto power interfered not with a service to which anyone had a constitutional right, like abortion, but just with serving liquor. It was simply being governed by someone unaccountable to nobody that offended the Constitution. In the Texas case, even a judge or justice convinced that Roe v. Wade was wrongly decided and that there is no constitutional right to end a pregnancy would need to confront the long line of precedent establishing that due process of law, enshrined in the Fourteenth Amendment, does not permit, to quote the court in Grendel’s Den “delegate[ing] to private, nongovernmental entities power to veto … a power ordinarily vested in agencies of government.” As the court said, it is difficult in such situations to imagine “any ‘effective means of guaranteeing’ that the delegated power ‘will be used exclusively for secular, neutral, and nonideological purposes.’ ” As one of us wrote in 1973 in defending the court’s Roe v. Wade ruling, abortion is particularly fraught with deeply religious as opposed to secular concerns and commitments. Just because the religion clauses are not directly implicated by the Texas scheme, it doesn’t follow that the long line of decisions into which Grendel’s Den fits becomes irrelevant in the effort to legally defang the Texas abomination.
Whatever force one attributes to Supreme Court precedent, it must be followed unless and until expressly overruled. To turn a blind eye to the blatant departure from its own precedent, as the Whole Woman’s Health decision did, is for the court to deny its own legitimacy and invite chaos to replace the rule of law. Neither the Justice Department nor private litigants can ignore the illegality of granting bounties willy-nilly to private individuals for their own benefit, an unconstitutional money-making scheme if ever there was one.
Um, professor, I hate to play the role of Obviousman here, but I see a flaw in your plan. The Roberts Court as of 2019 had overturned 21 Supreme Court precedents. There have been at least a half-dozen more precedents overturned since then. Chief Justice John Roberts, no shrinking violet about disregarding precedent, has lost control of his Court to the far-right Trump radicals who have no problem with disregarding precedent to impose far-right positions from the bench, using the institution of the Supreme Court to legislate and imbue it with the imprimatur of legitimacy in the mind of the public.
This Court has already
“denied its own legitimacy” with its cowardly unsigned opinion in Whole Woman’s Health, which was signaling how the far-right Trump radicals intend to rule on the Mississippi abortion case they granted certiorari on the docket this fall. They will overturn Roe v. Wade, an almost 50 year old precedent which has been taken for granted as decided law. They will not stop with Roe, there are other precedents they hope to overturn.
So professor, my question to you is “what makes you so certain that the far-right Trump radicals will not also disregard precedents like Grendel’s Den and other due process precedents?”
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The Party of The Mob are violent vigilantes, from the January 6 insurrection, to anti-mask/anti-vax threats and intimidation of school boards and teachers, to “poll watcher” intimidation of minority voters, to vigilante abortion bounty hunters in Texas.
David Corn writes, “Texas Shows How Trumpism Is Becoming Fascistic Vigilantism”, https://link.motherjones.com/public/24936287
[I]n recent days, Trumpism without Trump has scored significant successes and pushed the United States further toward hallmarks of authoritarianism: political violence and fascistic vigilantism. In Texas, GOP Gov. Greg Abbott and Republican legislators enacted a law that bans most abortions (those performed after six weeks into a pregnancy) and, worse, creates anti-abortion vigilantes.
[I]n crafty fashion, Abbott and his fellow Republicans are deputizing far-right abortion foes and egging them on to become abortion bounty hunters and informants. They are weaponizing extremists and essentially establishing an anti-abortion militia. Ponder the potential for abuse, with battalions of Aunt Lydias scouring the state for abortionists and their helpmates. This is the Gileadization of Texas. And if the ploy succeeds in the Lone Star State—the Supreme Court in a late-night order declined to block the measure—abortion foes will try it in other states.
Texas Republicans have done something similar with voting. The state law recently passed that restricts certain forms of voting includes a provision that could unleash an army of right-wing partisan poll watchers. The law grants party and ideological activists more access to polling stations—in a state with a long history of conservatives deploying poll watchers to harass and intimidate voters of color.
In this instance, too, the GOP Trumpists in Texas are bolstering their radical minions, encouraging them to descend on polling places to police—and perhaps harass—the vote. Another recent Texas law allows most Texans to carry handguns in public without receiving training or obtaining permits. Picture armed right-wingers in military-style garb patrolling ballot stations.
[Rep.] Madison Cawthorn (R-N.C.), who told a crowd at a local Republican Party office that “bloodshed” might be necessary to combat voter fraud.
Put it all together and Cawthorn’s message is clear: prep for a new civil war.
Cawthorn is saying it’s time for the far right to consider violence to achieve political ends.
And Abbott and his GOP legislature are enabling Trumpers to form vigilante bands that chase after women and that intrude upon polling places.
[T]he recent moves in Texas, and the rhetoric of Cawthorn and others, demonstrate that the Trumpish fascistic impulse remains strong within the Republican Party—and that, in the case of Abbott and his henchmen, its adherents are sharper than Trump and more committed to getting results.
—
For more on the The Party of The Mob as violent vigilantes, see Charles Blow, “From ‘Ku Kluxism’ to Trumpism”, https://www.nytimes.com/2021/09/05/opinion/ku-kluxism-trumpism.html
And Jon Michaels and David Knoll, “We Are Becoming a Nation of Vigilantes”, https://www.nytimes.com/2021/09/04/opinion/texas-abortion-law.html
Constitutional Law professor Laurence Tribe similarly writes in an op-ed at the Washington Post, “What the Justice Department should do to stop the Texas abortion law”, https://www.washingtonpost.com/opinions/2021/09/05/justice-department-stop-texas-abortion-law-laurence-tribe/
Attorney General Merrick Garland has the power, under federal civil rights laws, to go after any vigilantes who employ the Texas law to seek bounties from abortion providers or others who help women obtain abortions.
The attorney general should announce, as swiftly as possible, that he will use federal law to the extent possible to deter and prevent bounty hunters from employing the Texas law. If Texas wants to empower private vigilantes to intimidate abortion providers from serving women, why not make bounty hunters think twice before engaging in that intimidation?
For example, Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
This statute — originally designed to go after the Ku Klux Klan — fits the Texas situation perfectly: The bounty seekers, entitled under the Texas law to collect penalties of at least $10,000, have been made, in effect, private attorneys general of Texas. They act “under color of state law,” and unless and until Roe v. Wade is overruled, they unmistakably intend to prevent the exercise of a constitutional right.
In addition, Section 241 of the federal criminal code makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten, or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.” This crime may be committed even by individuals not found to be acting “under color of law” but as purely private vigilantes, as long as they’re acting in concert with others.
Again, the Texas scheme could hardly be more perfectly designed to match the language of that section. The whole point of the Texas law, after all, is to intimidate abortion providers and others by threatening them with penalties of at least $10,000, plus legal fees, in the form of bounties to be paid to the vigilante. Even jurists who believe the Constitution does not protect abortion rights might be given pause by this seizure of private property, with unlimited penalties not tied to any actual harm suffered by the bounty hunter.
It would be particularly fitting — in tune not just with the letter but the spirit of the law — to use the Ku Klux Klan Act in this way. After all, the statute was enacted in 1871, in the aftermath of the Civil War, precisely to prevent Klansmen from lynching and other attacks on formerly enslaved Black citizens, including to prevent them from exercising their constitutional right to vote. As the Klan rampaged in the former Confederacy, Southern states didn’t simply turn a blind eye to its vigilante justice but encouraged it.
In addition to these criminal provisions, there are civil actions available under federal law, including the ability to seek and obtain court orders to halt the illegal state scheme. The Justice Department can’t directly use the civil provisions of the Ku Klux Klan Act; only the injured party can. But the All Writs Act, which permits federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions” could allow the department to go to court to seek an order blocking the Texas law from being enforced.
[A]t some point, the need to disarm those who cynically undermine constitutional rights while ducking all normal avenues for challenging their assault on the rule of law becomes paramount.
We have arrived at that point.
Jennifer Rubin, who is a lawyer as well as a columnist for the Washington Post, seconds professor Tribe on his legal strategy. “One tactic to stop abortion bounty hunters from demolishing women’s constitutional rights”, https://www.washingtonpost.com/opinions/2021/09/05/one-tactic-stop-bounty-hunters-demolishing-womens-constitutional-rights/
There are many avenues the federal government can do to protect Texas women. For example, Section 1983 of Title 42 in the U.S. Code provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” When Texas’s law forces every abortion provider in the state to shut down, surely there is a deprivation of constitutional rights. They have effectively “chilled” women’s constitutional rights.
What about “under color of any statute”? Does that not limit Section 1983 to so-called state actors? In fact, there is a well-developed body of law that says private individuals acting in concert with state actors can be sued. The “under color” phrase does not require that the accused be a public official. That person only needs to be engaged in “in joint activity with the state or its agents.”
In a 1988 case, West v. Atkins, the Supreme Court held, “The traditional definition of acting under color of state law requires that the defendant in a [Section] 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’”
A slew of lower court cases have enshrined this principle. A Massachusetts district court case in 2006, for example, explained: “In evaluating whether the conduct of an otherwise private actor constitutes indirect state action, courts conventionally have traveled a trio of analytic avenues, deeming a private entity to have become a state actor if (1) it assumes a traditional public function when it undertakes to perform the challenged conduct, or (2) an elaborate financial or regulatory nexus ties the challenged conduct to the State, or (3) a symbiotic relationship exists between the private entity and the State.” Moreover, when the state and individual actors’ conduct amounts to “pervasive entwinement,” the private individual can be a state actor.
[T]he interplay between Texas officials and private actors is intricately choreographed for the express purpose of letting the state get away with something it could not do directly. This screams out for a remedy to break up this unsavory alliance of anti-choice bounty hunters and the state.
To be clear, a Section 1983 case requires a high level of intermingling state and private actions. The degree of collaboration required against private actors in 1983 cases may not exist in this situation. Ironically, simply announcing the intention to file 1983 suits against bounty hunters might be enough to stop — or to borrow a phrase, chill — the whole charade. Certainly, anyone sued under the bounty-hunting statute could raise the defense that the law is unconstitutional. What Section 1983 does is provide an offensive weapon to discourage such suits and ensure that bounty hunters pay a price for attempting to interfere with women’s constitutional rights.
The Texas statute breaks new legal ground, and women’s rights defenders must be creative and bold in their counterattack. Any and all viable strategies should be tried.