The BBA has regularly spoken on issues relating to the rule of law, civil rights, and the administration of justice. These are precisely the issues at stake in the new Texas abortion statute, known as SB-8, and the Supreme Court’s recent decision not to stay its implementation.
SB-8’s disturbing approach is to empower — even encourage — private citizens to use the judicial process to abridge individual rights that are protected by Supreme Court precedent, by providing a bounty to anyone who would pursue a claim against another for actions associated with obtaining a legal abortion. This threatens the rule of law, as well as the value of settled precedent, and is fundamentally at odds with the existence of a right to privacy.
The right to privacy was at the heart of the Court’s Roe v. Wade decision, which has stood for nearly 50 years as the law of the land. Yet the Court declined to stay the implementation of SB-8 on procedural grounds, without benefit of briefing or argument, under what has been termed its “shadow docket”, perhaps signaling that it does not see a constitutionally protected right despite the holding in Roe. If the Court wishes to reverse its own ruling in Roe — or any other long-standing precedent that is otherwise governed by the principle of stare decisis — it at least owes the public, upon whose trust and confidence it relies, an open and clear explanation about doing so, through a full written opinion issued after briefing and argument.
If the constitutional end-run embodied in Texas SB-8 is allowed to succeed, what other rights might different state legislatures attempt to restrict by relying on vigilante-style action to do what the state itself could not do constitutionally? It bears noting that in the case of the Texas statute here at issue, the burden will fall most heavily on those women who are most vulnerable and can muster the fewest resources in their time of crisis.
For these reasons, the BBA applauds the Department of Justice’s announcement that it will challenge SB-8, in furtherance of its role of defending the constitutional rights of individuals, in Texas and across the nation. States should not be rewarded, even temporarily, for finding novel ways to end-run judicial scrutiny.