What Does The Law Require Of You?

It's understandable that folks are fixated on how the Texas law all-but eliminates a pregnant woman's right to a pre-viability abortion. But the implications here are even bigger—threatening a fundamental restructuring of how our constitutional rights are (and are not) protected.

— Steve Vladeck (@steve_vladeck) September 6, 2021

Everything new is compared to something old, something familiar, so we can start to understand the new. It’s basic epistemology. The only way to learn a new thing is to relate to an old thing, until the differences are just a distinction, and the new is now familiar.

The familiar here is not even the threat of a fundamental restructuring of the protection of our constitutional rights. The threat here is even more fundamental than that. The threat is to the basic concept of our legal system. Which, I know, sounds ridiculously exaggerated, but it’s true. And thereby hangs the analysis.

This is the problem with the Texas abortion law. It is new, so we relate it to the familiar. Unable to relate it to what we know, we can’t see it clearly. We can’t see it clearly because it isn’t the familiar. The statutory damages have been called a bounty; but they aren’t. A bounty is paid by one party to a second party for returning a third-party to justice. The Texas law is for recovery of damages for no other reason than alleging a violation of civil (not criminal; the distinction is crucial) law. The plaintiff has not been damaged, the court cannot order recompense under regular theories of civil law, and a third-party is not making the payment. The defendant pays the plaintiff for what the defendant did, but not for what the defendant did to the plaintiff. The defendant pays the plaintiff for committing an otherwise lawful act. The statute doesn’t make abortions illegal in the sense we call a crime illegal. It simply allows recovery of damages for the act of abortion, or for aiding it, or even for approving of the idea of it. But they aren’t damages, because the plaintiff is not due recompense. How is that like anything we do in our justice system?

It is legalized, incentivized harassment. An harassment that can go on for as long as there are persons to seek the bounty.

The collection of a bounty is one-time act, per party. What of stare decisis for the defendant? How many plaintiffs can seek statutory damages for the same act? The Texas statute doesn’t set a limit. Due process and the Constitution bars the state from bringing a criminal case against the same defendants for the same crime twice. Stare decisis protects a defendant from being sued by the same plaintiff for the same actions twice. But what about another plaintiff, with no more relation to the first plaintiff or the acts, than the other plaintiff? Would the defendant have a defense? Is there any reason the defendant can’t be sued over and over for the same actions by as many plaintiffs as want their $10,000?

How is that like a bounty? How is that like justice? How is that like anything we do in our legal system?  This punishes the defendant endlessly, and fills the court with lawsuits. It also completely detaches harm from actions. And if the court decides this outcome is not just, even as the statute is silent as to such an outcome, how does the statute survive? But do we have to wait for this manifest injustice in order to do justice?

Nor is the government paying you to do something for them with someone else’s speech or because of their actions. Instead the government is establishing conditions whereby you can use government authority (the courts) to extract money from a stranger for what they did for another stranger.

How is that like anything else we do in our legal system? What is the theory for it, the justification for it? The only available one is to provide a mechanism to avoid Roe by removing the state from the action of punishment for the act. The civil system exists to redress injuries done by one person against another. Under this statute anyone is entitled to milct a stranger for an act that has nothing to do with them. And it does so, so the state can call its statute “constitutional.”

How is that like anything we do in our legal system? How is that justifiable as a law?

I'm not entirely surprised the Supreme Court didn't see this without the case being fully examined by the appellate court yet (as Kagan pointed out), but that only buttresses the dissent that the Court should have frozen the status quo from before passage of the statute (which clearly suspends Roe in Texas) until the lower courts could chew this bone awhile and produce some understanding of what it is and what it does.  That's why the appellate process is slow and cumbersome and tedious; because like mills of God, it grinds slowly, but it grinds exceeding fine.  What shouldn't have happened was the case leapfrogging upwards on interlocutory appeals that further obscured what a chimera this statute is.

But that presents another problem with our legal system and the Court's sense of "constitutionality."  Hard cases make bad law, but bad statutes shine bright lights into dark corners.  Now if we just have the good sense to look into those corners.

UPDATE:  Ken Paxton tells Steve Bannon (because, why not?) that this statute is an "experiment in democracy," just like the Founders intended.  No, I don't know what he means, either.  Likely he doesn't know, he just heard it somewhere and thought it sounded clever.