Be Careful What You Wish For…

Texas, in an excess of zeal to control women’s reproductive choices, has enacted a bill–which, at this writing, has gone into effect–that would essentially undermine America’s understanding of the rule of law.

I’ve posted previously about the analysis of that measure by Constitutional Law professors Laurence H. Tribe and Stephen I. Vladeck.

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

As they point out, enlisting private citizens to enforce the law is intended to avoid challenges to the bill’s constitutionality. The theory is that, since the state itself will not be directly involved in enforcing the law (unlike under “private attorney general” statutes, only private citizens can bring these suits), state’s officials will not be proper defendants to a lawsuit. What far too many Americans do not understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors.

No state action, no constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues. Per Tribe and Vladeck,

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. I wholeheartedly agree with the professors’ citation of a 1948 case involving racially-restrictive deed covenants, in which the Court found state action present because private deed restrictions could only be enforced with the participation of judges, clerks and other state officials.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

If successful, this effort would empower the zealots among us, right and left, turning citizens against one another on whatever contentious issues legislators chose. This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence.

However, even a more conventional overruling of Roe invites unintended consequences.

This year, the Supreme Court will review Mississippi’s ban on virtually all abortions after the 15th week of pregnancy. A Court created by Donald Trump is likely to overrule–or eviscerate–Roe v. Wade. If it does so, Republicans may come to rue the day.

Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated. Pro-choice voters, however, will be newly energized–and polling suggests they significantly  outnumber “pro-life” activists.

The de-nationalization of Roe wouldn’t just mobilize pro-choice voters who’ve relied on Roe to protect their rights. It would redirect liberal and pro-choice energies from national to state-level political action. And that could be a huge game-changer.

If Roe is no longer the law of the land, the issue will revert to the states, and a number of states will opt for reproductive choice. Those of us who care about women’s autonomy will need to do some serious fundraising to help poor women in Red states travel to states where abortion is legal, and that’s a pain. But even now, with abortion theoretically legal, there are many places in the U.S. where clinics are few and far between; women have to travel long distances, put up with bogus “counseling,” and deal with other barriers to the exercise of the currently constitutional right to terminate a pregnancy.

As I have repeatedly noted, the current dominance of the Republican Party doesn’t reflect  American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe gone, purple states–including Texas–will more quickly turn blue.

If Roe goes, the game changes. File under: be careful what you wish for.


  1. I wish I had your optimism, but purple states mean moderate Democrats in most districts, which doesn’t motivate the base much, especially with the younger crowd.

    Here we go again with ratcheting the country to the right to see how many follow along or not.

    The Koch’s are playing this game while they burn up the planet simultaneously, and we’ll follow right along because they are pushing our hot buttons with identity politics.

    Are you pro-choice or pro-planet? Are you pro-choice or pro-worker?

    And, with the Dems cutting off the knees of any Leftist movements, everybody slides further to the right until enough truly woke people vote for Green or other Leftist options. Thus, the two capitalist-controlled (oligarchy) parties are leading us off the cliff. How many will follow?

    When enough people wake up and walk away from their little games, then it’s over. Otherwise, we all take one step closer to the abyss or cliff’s edge.

  2. Indeed! Then, Republicans aren’t answering to the people these days, only their diminishing cadre of donors. They need the mindless evangelicals, of course, and in Texas evangelicals rule just about everything in government. The state school board in Texas is stacked with these ideologies who have NO idea what the Constitution is never mind what children need to know to survive OUTSIDE of Texas.

    As a school teacher there from 2002 – 2007, I saw this day coming. Sadly, we finally had the good sense to get the hell out of there after 15 years of watching Republicans control the state legislature, send absolute morons to Congress (Louis Gohmert is the poster boy for them.) and keep electing corrupt fools to the governor’s chair. And yet…

    Texas citizens have been so brainwashed to despise anything liberal (That’s “LIB-rawl” in Texasspeak) that they’d vote for Satan himself over Jesus if Jesus ran as a Democrat. I’m not really joking. And it looks like all of the old Confederacy is still living in the 19th century too.

    I’m glad I’m old.

  3. Listen, this calls for a complete shutdown of the state of Texas by WOMEN!
    No more work
    No more sex
    No more cooking, teaching, nursing, doctoring,
    Cleaning or Mothering.
    Full Stop!

    WOMEN need to go on strike, Right F now!
    Jesus Christ Texas.

  4. “…..not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation”
    “…..enlisting private citizens to enforce the law…..”
    The job market for bounty hunters has just expanded in Texas; and by a 5 to 4 vote, it has been endorsed by the U.S. Supreme Court.
    “Without Roe, the single-issue anti-choice voters that have been a mainstay of the GOP will be considerably less motivated.”
    I wish I could share that optimism; but unfortunately, there is no shortage of single-issues to motivate zealots. Whack-a-Mole will play on.

  5. “…it has also provided for enforcement of that ban by private citizens…”

    That portion of the Texas bill immediately brought to my mind the picture of Gomer Pyle chasing down Deputy Barney Fife while yelling “Citizens arrayust, citizens arrayust!” on the Andy Griffith show.

    The Republicans’ total obsession with sex in any and all forms relating to full and complete control of women’s bodies and medical decisions has reached unConstitutional levels of idiocy. At the same time, to further victimize girls and women of all ages, they condone and ignore the actual criminal sexual abuse charges and harassment of those among their administration and on our Supreme Court of the United States of America. Their reach spans all three branches of our federal government; Legislative, Executive and Judicial. Their controls are being followed at local and state levels as Republican states ignore their own state Constitutions (Pence’s RFRA here in Indiana) as well and the Constitution of the United States of America. Our priorities are now on a third-world level; will we ever know the full content of the pact Donald Trump made with the Taliban which brought about Texas jumping on their Sharia bandwagon and SCOTUS backing off from taking any action to uphold the Constitution and the Amendments?

  6. Aging Girl: Read the Greek play Lysestrata (sic). Your theory was good enough to stop the Pellopenisian(sic) wars.

  7. I’ve said it before, but I don’t mind repeating it. They only people who are in favor of abortion are Republican legislators with pregnant mistresses. The reason they don’t mind passing so many restrictive laws is that they can afford to send their girlfriends to California, New York, or New Jersey. This is mostly a war on poor women. Let’s make the abortion pill widely available.

    Now to the thing that concerns me even more, the shadow docket. If the court isn’t able to conduct all of its business between the first Monday in October the end of June, when they typically recess, perhaps we do need to have more justices. The past few weeks have been a travesty of justice, including the requirement to stay in Mexico, ending the ban on evictions, and finally, letting this Texas law go into effect. No argument, research, or decision writing required. Ruling by inertia in the last case. Is this justice?

  8. Citizen enforced anti-abortions. Citizens empowered to carry guns without license. The rise of Neo Taliban in Texas. Stay tuned.

  9. Norris,

    Or armed Neo Nazis?

    “The Sturmabteilung; SA; literally “Storm Detachment”) was the Nazi Party’s original paramilitary wing. It played a significant role in Adolf Hitler’s rise to power in the 1920s and 1930s. Its primary purposes were providing protection for Nazi rallies and assemblies; disrupting the meetings of opposing parties; fighting against the paramilitary units of the opposing parties, especially the Roter Frontkämpferbund of the Communist Party of Germany (KPD) and the Reichsbanner Schwarz-Rot-Gold of the Social Democratic Party of Germany (SPD); and intimidating Romani, trade unionists, and especially Jews.

    The SA were colloquially called Brownshirts (Braunhemden) because of the color of their uniform shirts, similar to Benito Mussolini’s blackshirts. The official uniform of the SA was the brown shirt with a brown tie.”

    #MAGA Sound familiar? This time they come in red hats. 😉

  10. A few observations.

    * Yes, this does invite more progressive states to target right-wing sacred cows such as the gun industry, the high-dollar tax-evasion industry, industrial malfeasance of all kinds, racist and religiously bigoted groups that promote hate crimes and disorderly conduct, and so on. Remember to allow anyone anywhere, without or without demonstrated harm, to file such “bounty-hunter” lawsuits against any person or corporation even tangentially associated with the targetted behavior, and prohibit the defendants from changing venue to a friendly state, and prohibit the defendants from recovering legal expenses, just like Texas. Unfortunately, there’s nothing to prevent the Republican-majority Supreme Court from simply arbitrarily favoring or squashing such laws based on partisanship, disregarding precedent and principle and refusing to supply even a pretended justification. How blatant are they willing to be?

    * The mischief-maker in me wonders if some organization (outside of Texas, of course) could sponsor pregnant women who intend to get an abortion to travel through Texas, keeping careful documentation of every taxi, ride-hailing service, airline, airport, rental car company, privately-owned tollway, hotel, ticket-selling service, etc., etc., that she uses en route to getting an abortion in, say, Mexico or some other place beyond the reach of Texas courts. These could even be selected to include businesses owned by prominent Texas Republicans. Then file dozens of bounty-hunting lawsuits against each and every one. With a few lawyers on retainer, these lawsuits could be cranked out by the dozens or hundreds, just filling in the names and addresses of the defendants using a standard template.

    * Does Justice Stephen Breyer recognize that he and whatever principles he espouses are being ground contemptuously under the heel of the Republican supermajority on the court precisely because the Republican Party belligerently practices precisely the kind of overtly political manipulation of judicial nominations that he so genteelly deplores and considers beneath his consideration? The Republican Party would not have a 6-3 majority, in defiance of the popular will, without its overtly political manipulation of the replacement of Justices Ginsberg and Scalia, and the politically-timed resignation and replacement of Justice Kennedy. A little more genteel refusal to act on such considerations, and we’ll end up with a 7-2 or 8-1 or 9-0 Supreme Court that operates purely and openly as a partisan enforcer for fascism, and doesn’t even bother to dress up its partisanship with a pretended justification — just as in this ruling.

    * I wonder how Texas will handle the glut of thousands or millions of lawsuits that this law is capable of generating. Summary judgements for the plaintiff, stamped out by a sympathetic judge? Or will they try to unclog court dockets by, say, prohibiting civil lawsuits against corporations?

    * If democracy actually works, then the spectacularly chaotic disaster that this law is likely to bring about will substantially boost the Democratic vote in Texas and elsewhere. But the Republican party at state and federal levels are attempting to insulate itself from the popular vote, and enshrine itself as a permanent ruling party that need not have majority support. How far can they push this without generating a backlash, lawful or otherwise?

  11. Texas is the first version of Gilead in the US. Wonder when we might start to see people fleeing the Texan Taliban?
    And Senator Joe Manchin prefers this to save the filibuster?
    Watch what they do, not what they say.
    🙁 >:-<

  12. ” the current dominance of the Republican Party doesn’t reflect American majority sentiments–far from it. GOP membership has been shrinking steadily; some 24% of voters self-identify as Republican (and thanks to vaccine resistance, those numbers are dwindling…) GOP gerrymandering and vote suppression tactics are artifacts of state-level control. With Roe goneo, purple states–including Texas–will more quickly turn blue.”

    Respectfully disagree. Wait until the 30 GOP-controlled states do their Gerry-magic. Where is any evidence that DEMS turn out for abortion rights? Not to mention that significant numbers of the DEM base among Latinos/Blacks are anti-abortion…check the 2020 results.

  13. Lester —
    Have folks actually voted on abortion directly in Texas? I thought they had voted for candidates (as in most states).

  14. Kathy,

    If a candidate in Texas is GOP, they more likely than not, have proudly stated they are pro-life. Likewise, DEM candidates there, and in most red districts/states state the opposite. It is in plain sight…,

  15. Republican desperation about being held accountable for the Trump era at the polls is blatantly evident in the Texas choice to throw the majority of voters, women, under the bus in order to continue to grab whatever power they can over whoever they can. Any of us who thought that they would return to serving the country in the aftermath of Trump’s hostile takeover of the party were simply wrong.

    Power corrupts, absolute power corrupts absolutely.

  16. There’s an old playground saying, “Turnabout is fair play.”

    The law is so vague in what grounds a citizen must have for accusing another and sending them to court that, “I think she’s thinking about” can be grounds.

    SO, get a list of every Republican woman, wife, daughter, niece, mistress, etc., and accuse them of plotting to get of “aid” an abortion. They will have to prove their “purity” in court, and they can’t even recover attorney fees if they win.

  17. I think Sheila’s prediction of more women voting Democratic is more likely to happen than that of Todd. Women constitute some 52% of the voting public and a majority are pro choice. I also think men are more likely to vote Democratic if the 5-4 decision holds on the merits.

    I also think the chief justice’s dissent is the best among the dissenters. The attempt by the Texas legislature to deputize the (so to speak) general public to play detective by transfer of the legislature’s qualified immunity, it seems to me, results in and of itself state action (under the law of principal-agent) and especially when considered as against the cited language of Sheila’s 1948 redlining decision where the state’s apparatus of courts, clerks et al is essential to carrying out the terms of such legislation. Is the Texas legislature trying to do an end run around the defining case of Marbury v. Madison?

    Just what legislative powers are delegable to the general public, a delegation in this case plainly written to escape court scrutiny altogether? Is such delegation “state action” in and of itself and therefore open to judicial scrutiny? What this court finds on the merits months from now (if not derailed by the pending Mississippi case) will be more than interesting. As for Texas with its clogged courts and chaos (and perhaps the 5th Circuit Court of Appeals) during the interim – good luck!

  18. The fact is although Democrats are constantly threaten retribution at the polls, abortion has never been a good political issue for them. Here is the fact of life I learned early on: Pro-life people vote on the issue. Pro-choice people have other priorities.

    I tell the story of in 2000 running for a House seat on the northwest side of Indianapolis. I had a hotly contested primary and knocked on hundreds of Republican doors. Voters would often ask me about my views on an issue they felt passionately about. Then they would tell me their views. During the primary round, the No. 1 issue was abortion and every voter who asked my views on abortion revealed themselves as pro-life.

    I won the primary. Leading up to the general election, I focused on knocking on the doors of independent voters and those with a soft Democratic voting history. Again, the No. 1 issue I was asked about was abortion. Now here is what is stunning. Every voter who asked me about my position on abortion was once again a pro-life voter. Of the thousands of doors I knocked on, not one person who raised abortion with me was pro-choice. Not a single one.

    Oh, and probably 90% of the passionate pro-life voters I met at doors were women. That men are on one side of the abortion issue and women on the the other is such a huge myth. It makes a nice narrative that abortion is just about men controlling women’s bodies, but that’s just not reality. Women are the driving force in the pro-life movement.

    It is quite possible the repeal or replacement of the framework of Roe/Planned Parenthood might change that political dynamic. After all, when one side “wins” a political issue, the other side typically gets motivated. So, it’s possible pro-choicers might rise up and make abortion a primary voting issue. But, given the history of the issue being fool’s gold for Democrats, I am not sure I’d bet the farm the political dynamics would change.

    My guess is that any change to Roe/Planned Parenthood is going to still provide constitutional protection first trimester abortions. Which is 90% of abortions. I’m not sure the D’s fighting over second and third trimester abortions ultimately is good politics. But that’s down the road. The best political landscape for Ds is the debate right now – the possibility Roe will be overturned and abortion banned.

  19. As for the slippery slope of political prediction, only incidental to today’s topic, I am of the opinion that this case however decided will provide Democrats with the margin necessary to change purple Texas and Florida into blue states, and that with the first four states in electoral count (California, Texas, Florida and New York) and the likes of Illinois and perhaps Georgia, we Democrats will only have to pick up a few more states to win both houses of the Congress in 22 and 24, electing a president in the latter.

    Of course, adverse events can undermine my predictions. Dictatorships frequently have elections, but with no fear of the outcome since, as Stalin openly intoned that he was not interested in the voters but rather in those who counted the votes. Given such an arrangement, the “people” always voted for the dictator. We are seeing such a Stalinesque idea today in the flesh with “recounts” forensic and bamboo by a would be dictator who not only lost but lost badly in an election whose results were certified by all fifty states both Democratic and Republican, a count our would be dictator attempted to disrupt with the purpose of declaring martial law and assumption of dictatorial rule in the ensuing chaos. The attempt failed, but the idea persists; so we should be on our guard in every election down the road with clean elections while abiding the outcomes, outcomes I here predict will be favorable to Democrats as the Republican Party continues to sink into oblivious Whigdom.

  20. Reproductive planning/options are a top concern given the outlook of our warming planet and the lack of political will to make the changes needed for future generations.

  21. It seems to me that a lot of this is driven by “replacement” theory, and that most of the supporters think they are “saving” little white babies. Look at the majority of fetus pictures they post and tell me that’s not true. However, that’s going to backfire on them, since most of the women affected will be poor POC. Wealthy white women will always be able to find a way.

  22. “…entitled to compensation,” echoes the situation surrounding the Salem witch Trials, wherein those reporting/outing a “witch” were entitled to that person’s property. I have read that there is no mention of abortion in the bible, whatsoever. Can anyone comment on that?
    Todd, I must agree with you, again, odd.
    Yes, Aging girl, and Vernon, Lysistrata to the rescue!
    Texas, the Lone Star Taliban State! I used to suggest that if one wanted to see what a theocracy looked like, one had only to look at Iran…and there goes Texas!
    So, unless the country wakes up to the damage that this version of SCOTUS can do, we will be suffering from Trump’s illicit time in office indefinitely.

  23. Why don’t we have referendums in each state? let’s vote on abortion and I bet most would say, it’s none of my business. As it should be. The “so called pro-birth party” is falling down on the job. Their obsession with what is going on in the bedroom is downright embarrassing to the rest of of us citizens. Libertarians confuse me.

    And let’s start holding the men responsible eh Mr. Ogden. Child support starts at conception right? Let’s Sterilize the men that impregnate multiple women every week, month, year. What’s it going to be? How many children are allowed for a man to create? I’ll repeat, a woman can make one baby a year. How many can a man create that’s morally acceptable to you Jesus folks.

  24. Aging Girl @ 12:32 pm, I would agree – None of My Business. If you do not believe in Abortion – Do not Get One.

    My take from talking to Pro-Lifers they are totally opposed to abortion. The birth mother must have the child. Their passion wanes during the pregnancy and after the child is born. They do not want to financially support the birth mother during pregnancy and go off the rails about Welfare Queens having children just to get more government money.

  25. Perhaps we should have let Texas secede back when it wanted to. If it still does, I’d say goodbye and good riddance. Their recent abortion legislation surely is a copy of the Stasi in East Germany.

  26. S.B.8 invoking private citizens to monitor private issues of young women is wrong on so many levels. I know in Ind. DCS takes calls from private citizens reporting “suspected” child abuse. The Texas law seems an expansion of child abuse laws? Giving the unviable fetus rights superceding the pregnant woman’s condition, means and mental health, especially in the first three months of development, is harshly agressive. Punishing young women for sexual activity that sometimes is coersed is too much.
    DCS has reported a high incidence of false reports, individuals seeking revenge against the accused. Sounds like Texas is giving the OK with their Litigation Privilege?
    When I served on jury duty for murder trials a few times, it was explained to jurors that the victim was a member of the State, therefore the prosecution proceeded on their behalf. Private Citizens are members of the State only when they’re dead or working directly for State?
    Putting bounties on citizens acting in private matters is so invasive & intrusive, and making the matter mercenary also is State? I just finished reading Margaret Atwood’s “The Handmaid’s Tail” and am reading her “Testaments” now, which are fiction. The feeling of these laws are reflected in Atwoods stories of how bad things can get!

  27. Interested in the future history of the United States? Read the Handmaid’s Tale. Which was written by a Canadian, who modeled some of the rituals in the book on her observations of ceremonies at Harvard in the 50s…

  28. Aging LGirl – I like your “Lysistrata” solution (as Vernon pointed out) – it is ashamed it won’t happen.

    Felix – I like your “let the Blue states respond in kind” idea, but the Supremes would say, Texas is right, but California is wrong because “well, um, er, um – so there – It’s in the Constitution, Clarence Thomas says so”
    I really like your “Send a pregnant woman through Texas” idea – a lot.

    As an independent thought – I blame pro-choice women (and men). Who elected Collins, among others? She lied then and she will lie now.

    Paul – You are partly right in your analysis. Pro-choice voters assumed it was a “done deal” and they took their eye off of the ball. Of course, Democrats have never understood the significance of the courts. In the past, Republican choices have turned liberal on the bench and Democratic choices had turned conservative. More recently, since Nixon, ideological purity became the litmus test for Republican court nominees (reaching a peak with Trump), while Democrats wanted “moderation”, appointing (per Appellate Judge Posner) Justices that were consistently more conservative than those they replaced (yes, he applied the analysis to Obama’s choices – the Notorious RBG only grew more liberal in reaction to the court moving the other way.)

    However, as you point out, the losing side gets more motivated. Where I disagree, is my belief that forces within the pro-choice movement are anti-sex enough that they won’t be happy until they label all birth control as “aborticides” and ban birth control. As my pro-life (SARS-CoV-2 is a hoax) friend once told me. “Sex outside of marriage is wrong, and everyone who engages in it should become pregnant and be forced to have the baby.” As the old saying goes, “[they] want government out of the board rooms and into the bedrooms.”

    It would be nice if this, and related issues, would rally voters of reason, I don’t know that it will.

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