The Supreme Court on Monday is hearing challenges to Texas’s antiabortion law, S.B. 8 — a measure that not only bans abortion after six weeks but allows any private party to sue anyone who aids or abets the procurement of an abortion — knowingly or unwittingly. By allowing private citizens to go after doctors, nurses, ride-share drivers and others, Texas aims to cast a deep pall of uncertainty and fear around the constitutionally sanctioned procedure.
Texas’s law has been described as “unprecedented” and “inventive,” as if the state’s legislature had broken new ground by granting private citizens the legal power to stifle constitutional rights. But these labels miss important historical context: Throughout American history, laws have been enacted to license private parties to suppress the constitutional rights of others by filing a lawsuit and bringing the weight of the state to bear on rights-holders. Such measures have been repeatedly used to keep down subordinated groups. They are far from marginal and their sheer frequency suggests S.B. 8 is no outlier but an indication that our Constitution has an Achilles’ heel when it comes to individual rights.
S.B. 8 may tap into people’s desire to think they are vigilantes, boldly enforcing their morality in defiance of Supreme Court precedent. But vigilantes typically don’t rely on the legal system to achieve their goals (though local laws may shield them from punishment).
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