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Vigilante Injustice — Deputizing and Weaponizing the Public to Stop Abortions

Texas Senate Bill (S.B.) 8: the “heartbeat” bill. Perhaps better described as the embryonic-cardiac-activity bill. It bans abortions a mere 5 or 6 weeks after the onset of the last menstrual cycle, even in cases of rape or when a woman’s health is in danger. That may be less than 2 weeks after a missed period — months before fetal viability, and before many women even realize they are pregnant.

Besides its flagrant disregard for Roe v. Wade, a constitutional decision that precludes wholesale prohibitions on abortion when a fetus is not yet viable, the most damaging element of the law is its enforcement scheme. The statute authorizes any private citizen — whether in Texas or not — to become part of a citizen posse and to file suit against anyone who performs or “aids or abets” an abortion that is in violation of the Act. Defendants would include not only health care personnel, but any friend, family member, or stranger who helps a pregnant woman find medical services that, at least today, are protected by the federal constitution.

Worse, S.B. 8 provides posse members with the incentive of a $10,000 reward for each abortion that’s halted. It’s being compared with the kind of bounty hunting used to capture bail jumpers, in which invasions — of home, of privacy, of one’s body — are subject to barely any legal controls. And it’s being compared with the East German Stasi, which used a vast network of citizens-turned-informants to do the government’s bidding and created a pervasive atmosphere of fear and mistrust — neighbor to neighbor, parent to child.

Most important, it’s being compared with what is usually forbidden: getting ordinary people to do what police and the government cannot do because it violates a person’s rights. Enforcement by individual citizen actions denies those who are affected — people needing abortion services, health care providers working at clinics — any clear target for suit when challenging the law. When, in Whole Woman’s Health v. Jackson, the Supreme Court’s five-justice majority blocked a temporary injunction that would have allowed time for lower courts to fully review the law, Justice Sonia Sotomayor dissented, arguing that the decision “rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation.” For this reason, the Department of Justice subsequently filed suit, arguing that private citizens enforcing the law are de facto state actors, thereby making Texas the defendant in a federal action, and arguing that S.B. 8 is preempted by federal law.

The Supreme Court’s refusal to temporarily enjoin the law probably presages its position on an upcoming Mississippi case (Dobbs v. Jackson Women’s Health Organization) that directly requests that the Court overturn its own precedent in Roe. The refusal suggests that the majority sees no irreparable harm when women are denied their constitutional rights and cannot access abortion services in Texas. Judging from recent experience, about 80% of abortions legally protected by Roe v. Wade will now be illegal under state law: of 600 people seeking abortion care in Texas in 2018, for instance, only 58% were at less than 6 weeks’ gestation when they first called a clinic, only 23% were that early in their pregnancy at their mandatory ultrasound visit, and only 16% were still at less than 6 weeks at their abortion appointment.1 According to the Guttmacher Institute, the number of Texas clinics providing abortion services, already reduced by half by other recently passed restrictions, may shrink to the point where the average Texan seeking abortion services would need to travel 250 miles to find a care provider. Many pregnant women won’t get to one in time, and studies show what frequently happens next: anxiety, intimate partner violence, obstacles to education and employment goals, and increased risk of physical health complications, including death.

The substance of the law — prohibiting even the earliest abortions — is yet another example of constraining physician judgment, a favored tactic among forces opposing abortion rights. In 2016, the Oklahoma legislature passed a bill that would revoke the license of any physician who provided abortions. Although never signed by the governor, it is the clearest example of limiting the scope of medical practice in the name of politics. And in 18 states, Ob/Gyns are forced to provide inaccurate information — regarding the effects of abortion on a woman’s mental and physical health, whether the fetus feels pain, and whether abortions cause breast cancer — and to perform unnecessary medical tests, use medically contraindicated procedures, and make patients travel during a pandemic and wait longer than is advisable. Abortion has long been the focus of legislatively mandated medical malpractice.

In the spirit of “plus ça change, plus c’est la même chose,” S.B. 8 has encouraged the generation of websites and tip lines to help informants share suspicions (whether genuine or malicious) and thereby intimidate and chill medical practice. As part of a similar fight against reproductive rights 40 years ago, hospitals were required to display a notice in each delivery and neonatal intensive care unit with a toll-free hotline number so that anyone could report a purported lack of maximal effort and extraordinary measures to keep a newborn alive, even if it was born with massive health problems and was facing a life of pain, lack of awareness, or short duration. “Baby Doe squads” were established to respond to such reports. In 1982–1983, these squads received 1633 calls, only 6 of which led to a change in treatment.2 But as a report in the Washington Post made clear, “At a time of maximum stress for parents, the squads descended on hospitals and interfered with the roles of parents, physicians, infant care review committees, hospitals and state authorities. Often these Baby Doe squads would consist of officials with no training in the relevant medical specialties…. [I]n a New York case…HHS pursued parents even after the state courts and the state child protective service agency concluded the parents had acted properly.”3

Yet at least the Baby Doe rules had observers report to the state, which would then decide whether to take action. Today, we are seeing laws and proposals authorizing members of the public not only to search out violations, but also to take enforcement into their own hands — for example, by suing schools for dividing restrooms and sports teams by gender identity (necessary for transgender students) or for teaching anything deemed to be “critical race theory.”

In Texas, the Baby Doe scenario is about to play out again. Except this time, there won’t even be the veneer of due process that constrained state officials 40 years ago. Citizens operate without such rules. Worse, there are already indications that other states may adopt Texas’s strategy and pass their own versions of the “heartbeat” model legislation developed by the National Association of Christian Lawmakers. “In essence,” as others have noted, “the states are manufacturing and subsidizing a community of grievance activists.”4

The mischief this law can cause goes further than some might imagine. It makes anyone who helps a pregnant woman get an abortion — physician, nurse, friend, or relative — vulnerable to being sued. Even if these defendants succeed and the suit against them is dropped, the fear and financial cost of defense will be theirs to bear. The effect could well spill over to scaring people away from helping someone who is having a miscarriage or stillbirth. In this country, we have already seen such women accused of having had an abortion, then prosecuted and jailed for what was actually a tragic pregnancy loss.5 In other countries — El Salvador, for example — similarly draconian antiabortion laws have affected physicians’ ability to manage high-risk pregnancies lest they be accused of performing abortions.

We should all be worried when a state commandeers women’s bodies for gestation but opposes the Affordable Care Act and refuses Medicaid expansions that would provide health insurance for the children they are forced to carry and deliver. We should all be worried if the next trend in Supreme Court decision making is deeming harmless the loss of constitutionally protected reproductive rights. And we should all be worried when a state deputizes its entire population to harass health care providers, frighten friends and family, and isolate pregnant women.

S.B. 8 is simply vigilante injustice.

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