One tactic to stop abortion bounty hunters from demolishing women's constitutional rights

[Nevilledog]

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Tweet text:
Marc E. Elias
@marceelias
"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."🤔

Opinion | One tactic to stop abortion bounty hunters from demolishing women’s constitutional rights
States tried to outsource the trampling of constitutional rights before. That didn't work.
washingtonpost.com
8:19 AM · Sep 5, 2021

https://www.washingtonpost.com/opinions/2021/09/05/one-tactic-stop-bounty-hunters-demolishing-womens-constitutional-rights/

When thinking about Texas’s nefarious scheme to deprive women of their constitutional right to seek an abortion, I am reminded of the tactics White segregationists used in the years following the Brown v. Board of Education decision. The 1954 ruling prohibited schools from segregating students, so some parents created all White “academies.” Some states threatened to close public schools for everyone. Blocked from keeping Black students in substandard schools, they sought other means to do the unconstitutional activity.

In the case of Texas’s antiabortion law, state lawmakers know that Roe v. Wade remains the law of the land, establishing a woman’s right under the 14th Amendment to control her own reproduction. So they came up with the idea to enlist private citizens to rat out women exercising their constitutional rights. They offered these people a bounty of $10,000. Think of them as hiring every Texas resident (and residents outside the state!) on a contract basis to make abortion services virtually impossible to obtain.

There are many avenues the federal government can do to protect Texas woman. 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.”

*snip*

[onecaliberal]

1. The Texas Taliban is coming to a state near you.

[Sherman A1]

2. Seems reasonable to me, but I am no lawyer or have much understanding of the nuances of the law

I am certainly hopeful that there is a legal rabbit to be pulled out of a hat somewhere to deal with this nonsense. I am also hopeful that Texas and any other state that goes down this path will suffer economically both very harshly and very swiftly.

[no_hypocrisy]

3. I believe that a class action of RICO lawsuits, coupled with a whole bunch of

frivolous lawsuits (treble damages, y'all!) should do the trick.

Bring it on!

[CTyankee]

4. There is a pay wall to read the entire article. Could you repost it without the paywall?

Thanks!

[Girard442]

5. It's vitally important that the Biden DOJ be aggressively on this...

...and be seen to be aggressively on this.

It's far too late in the game to show up for a knife fight carrying a chessboard.

[PortTack]

6. This woman is an attorney..take a look at what she has to say

https://vm.tiktok.com/ZMRy6mgJY/

[sir pball]

7. Title 18, Section 242 has more teeth.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

(emphasis added)

Give one bounty hunter the needle and see who else dares try.

[Igel]

12. But the rub's in "subjects any person ... to the deprivation of any rights ..." portion.

It's against providers. Presumably the rights in question are those of a person seeking an abortion later, after the triggering event.

If a provider pays a fine and decides to exit the business, does that deprive those seeking abortion of their rights?

And if injury results as a result of the provider's going out of the business because the fines are too much, does that trigger this provision?

What if the provider goes out of business as the result of a personal lawsuit involving some other law? Say, they screw up and are sued for malpractice because, pissed off, the former patient wants to shut them down?

Or the provider gets evicted when the landlord sells and title passes to a different landlord? Or the provider simply can't afford the insurance necessary? Or as the result of intensive "investigation" into health and safety practices, employment practices, or parking violations? (If they have nothing to fear, what's the problem, right? Investigate and investigate and investigate. At what point does it become illegal harassment?)

Or the provider just says, "You know, I can make more money in Atlanta doing ob/gyn without the publicity"? Does that mean that the provider deprives future patients of their rights? Surely there's a law, statute, ordinance, regulation, or custom that says a person can decide to change careers or close their business.

It'll be interesting to see how the arguments are made and where the law is stretched to cover this; or what old law unequivocally already handles this.

[Fiendish Thingy]

8. Since abortion rights aren't protected by any statute, SCOTUS would simply overturn Roe

This theory is worth testing in court, but I’m not optimistic.

[Dreampuff]

9. Having scotus overturn Roe versus Wade is what is so scary

A rapist gets a vote on Banning abortion?

[Lonestarblue]

10. This tactic makes me think of the post-civil War South.

Black people had the right to vote, but the governments turned a blind eye and encouraged private citizens to enforce their desire to prevent black people from voting and preserve their white supremacy. Those private citizens were the Klan.

Today’s abortion stalkers and bounty hunters are a version of the KKK out to prevent women from exercising their rights. Perhaps we could call them the ESC—Extremist Stalker Committee—or the FBK—Forced Birther Klan—or maybe the Texas Morality Police—TMP—or perhaps just the Texas Taliban Enforcers.

I’m sure the clever people here can come up with some great acronyms!

[ck4829]

11. K&R