Ruling on ‘draconic’ law could lead to other ‘vigilante’ laws
The Supreme Court effectively eviscerated a woman’s right to choose how to care for her own reproductive health on Sept. 2, 2021, in Whole Women’s Health v. Austin Reeve Jackson, Judge.
The five-justice majority in this unsigned decision denied a request to enjoin new Texas law or vacate the stays of the district court proceedings finding that law unconstitutional.
While acknowledging that those appealing to the court raised complex constitutional questions, the justices writing the majority opinion found that no governmental official or specific person had been designated to enforce the law, making it impossible for them to stop the enactment of the law.
The Texas law under discussion by SCOTUS empowers any citizen to take actions to sue anyone who helps a female, including very young victims of incest or rape, who might have had an abortion after six weeks of pregnancy. That would include a doctor, the driver of a car or anyone else.
The vigilante suing the helper of the woman or girl could then receive at least $10,000. Multiple people could sue the same person.
The law went into effect one day prior to the release of SCOTUS’ short, unsigned decision from the “shadow docket,” the term used to describe emergency cases to be quickly decided in order to prevent some imminent or irreversible harm, like a last-minute death penalty issue.
Chief Justice John Roberts objected to the denial of injunctive relief or lifting of the stays. He would have preferred that prior to the enactment of the law, he would have had the opportunity to read briefs and hear an oral argument about this complex issue to better analyze the question of whether a state can avoid responsibility by delegating its authority to everyone. His opinion was joined by justices Stephen Breyer and Elena Kagan.
Breyer also wrote a separate opinion joined by Kagan and Sonia Sotomayor in which they argued that SCOTUS had already determined a state cannot delegate a veto of a constitutional right over a first trimester abortion.
Sotomayor, joined by Breyer and Kagan, went further, arguing that the court’s order is a “stunning failure” to act that “rewards tactics designed to avoid judicial review and inflicts significant harm on applicants and women seeking abortions in Texas.”
Kagan, writing her own opinion and joined by Breyer and Sotomayor, slammed the court for greenlighting a Texas law that was patently unconstitutional and deputized Texans to enforce it in order to avoid judicial review.
Ironic, isn’t it, that Texas has enacted a draconic law allegedly designed to protect the life of a fetus while tightly regulating the health and welfare of women, but fights hard to protect Texans from the mask and vaccination mandates that might save the lives of ever so many people and might help prevent the mutation of this deadly disease.
And what is the next law empowering a vigilante-type crowd designed to keep a group of people in their place — one using lynching instead of collecting fines by suing through the court system?
The governor is now championing this law as a means to attract businesses. Perhaps the Taliban might be interested as they believe in restricting women, albeit more than the Texas legislature has mandated to date.
But the concern should also be the direction the new majority is taking the court and the country.
The majority seems determined to make great changes to government and law with little regard for process or precedent.
Sotomayor pointed this out in her dissent in Whole Women’s Health, writing that SCOTUS ignored not only women’s rights but also the “sanctity of its precedents and of the rule of law.”
Now, we will see what other precedents and laws are narrowed or overthrown.
Janyce C. Katz was an assistant attorney general for almost 25 years and currently works at General Innovations and Goods, Inc.