After once-respected Harvard Prawf Larry Tribe’s imaginative if disastrous journey down the road to eviction moratorium 2.0, which lasted all of about 12 minutes until he embarrassed a president (who wasn’t Trump) for deliberately engaging in unconstitutional conduct and himself for being Dersh’s bookend, one would have expected a bit of circumspection. Perhaps even humility, given how flagrant his indulgent exercise in fantasy proved. But no. Larry Tribe is back, and he’s got another brilliantly imaginative idea!
The Texas legislature and five Supreme Court justices have joined forces to eviscerate women’s abortion rights — the legislature by creating and the justices by leaving in place a system of private bounties designed to intimidate all who would help women exercise the right to choose. But the federal government has — and should use — its own powers, including criminal prosecution, to prevent the law from being enforced and to reduce its chilling effects.
Much as I disagree with the Supreme Court’s decision not to preserve the status quo ante, to characterize the decision as evisceration of women’s abortion rights is disingenuous. Not that a great many have chosen to claim that this interim ruling has “effectively” reversed Roe v. Wade, and not that many have bought into the narrative that hasn’t remotely happened, but that the failure to enjoin Texas’ law did expose women who choose to exercise an extant right (whether you like it or not) to peril under this terrible law.
But if and when some warrior takes up arms against it, the case will ripen into controversy, at which point the courts will be tested. But Tribe isn’t prepared to wait for a merits ruling. Rather, he wants to make a different sort of federal case out of it.
The attorney general should announce, as swiftly as possible, that he will use federal law to the extent possible to deter and prevent bounty hunters from employing the Texas law. If Texas wants to empower private vigilantes to intimidate abortion providers from serving women, why not make bounty hunters think twice before engaging in that intimidation?
For example, Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
The law, originally directed toward the KKK, presents some intriguing possibilities.
Again, the Texas scheme could hardly be more perfectly designed to match the language of that section. The whole point of the Texas law, after all, is to intimidate abortion providers and others by threatening them with penalties of at least $10,000, plus legal fees, in the form of bounties to be paid to the vigilante. Even jurists who believe the Constitution does not protect abortion rights might be given pause by this seizure of private property, with unlimited penalties not tied to any actual harm suffered by the bounty hunter.
The use of “private attorneys general” is novel in this context, but not unheard of in law. Many laws against discrimination and environmental harms provide similar enforcement schemes, allowing unharmed plaintiffs to sue and collect a bounty for their efforts under the guise of it serving the public interest. Texas seized the opportunity to use this scheme for the purpose of shutting down access to abortion.
But is prosecuting “vigilantes” for depriving women of their constitutional rights under Roe and Casey a viable solution? The right solution? Granted, the left’s anti-carceral views seem to ebb and flow with stunning hypocracy, but that’s neither here nor there. The right to an abortion remains a constitutional right, even if unenumerated, until such time as the Supreme Court holds otherwise. And I think it’s highly unlikely it will, even though it failed to enjoin this misbegotten Texas law in the meantime.
Should the United State prosecute any Texan who seeks to avail himself of the cause of action, not to mention remedy? Can it? Did Larry get one right for once? And if Tribe has a point this time, what are the ramifications for other states enacting laws favoring the rights of some over the constitutional rights of others, such as free exercise becoming subservient to transgender anti-discrimination? Should that too subject its litigants to federal prosecution, or will the government only prosecute people for pushing unfashionable rights over enumerated rights?
*Tuesday Talk rules apply.
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