Tell No One

Could Texas’s new abortion law create a nation of bounty hunters? Amanda Hollis-Brusky on how deputizing citizens as enforcers could turn America into a failed state. “The legal landmines, the uncertainty around who could be sued: Is it the Uber or Lyft driver who takes a woman to an abortion? The friend who drives outside of Texas to help someone get access to an abortion after week six but then comes back and enters Texas? The physician who provides information about abortion facilities?” Observe and Report Could Texas’s new abortion law create a nation of bounty hunters? Amanda Hollis-Brusky on how deputizing citizens as enforcers could turn America into a failed state. The issue of abortion became central in the United States again on September 1, when a law banning the procedure after six weeks of pregnancy came into effect in the state of Texas. Five justices on the U.S. Supreme Court voted not to block the law, known as SB8, though they didn’t rule on its constitutionality. In addition to effectively outlawing nearly all abortions, the new law includes a new and unusual enforcement mechanism. Texas officials will not police the law directly but instead leave this to private citizens. SB8 allows any U.S. citizen to bring a civil lawsuit against a person or organization performing or providing support to a woman who has an abortion after six weeks. This private enforcement offers citizens a bounty of $10,000 for a successful lawsuit, as well as reimbursement for legal costs. After the law was passed, legislators in Republican-dominated states such as South Dakota, Florida, and Arkansas declared their intent to draft similar legislation. Laws in Tennessee and Florida already empower students to sue schools that let transgender classmates play sports or use bathrooms corresponding to their gender identity, and recent bills in other Republican-led states would enable parents to sue schools that teach critical race theory. What will it mean to leave the enforcement of the law to citizens in this way? Amanda Hollis-Brusky, the chair of the politics department at Pomona College, has written two books on conservative projects to transform U.S. laws. As she sees it, deputizing all Americans to enforce the law would ultimately dismantle the rule of law in their country. If courts let these bounty-hunter provisions stand, Hollis-Brusky says, it would create a dystopia of individual states choosing which rights to protect and which to assail with vigilante lawsuits, gravely undermining the Constitution. Hollis-Brusky expects the Supreme Court to strike down SB8, partly because of the section granting anyone the standing to sue for civil damages. In her view, even if the law eventually falls, its effect in the meantime is effectively to end abortion in Texas. ——— Michael Bluhm: Where did the enforcement mechanism in SB8 come from? Amanda Hollis-Brusky: This is not an invention out of whole cloth. Texas has ripped from the playbook of civil-rights legislation but, to some extent, perverted it. The Americans with Disabilities Act was a landmark piece of legislation that created obligations for businesses, workplaces, and schools to make their facilities accessible to folks with disabilities. But instead of creating a federal bureaucracy and empowering some agency to make sure that businesses and schools were complying, the ADA empowered citizens to bring lawsuits to enforce the rights in the act. Whoever was bringing the lawsuit had to show that they had experienced harm—they had standing to sue, because they had experienced harm due to this business’s or school’s noncompliance with the act. In the Texas case, what is novel and, to some extent, a perversion of that provision is that anyone—not just Texas citizens, anyone in the universe—is empowered to bring a lawsuit against someone for exercising their constitutionally guaranteed rights. It’s a stroke of warped genius to empower private citizens to prevent anyone from aiding, abetting, helping, and giving information to a woman about how to access abortion after six weeks. There is a history of the right borrowing from the playbook of the left. But this is very different, because it creates financial incentives for people who are not in any way affected or harmed by another woman’s choice to control her own body. It creates an environment where abortion providers, physicians, even educators are liable to be sued just for talking about abortion. More from Amanda Hollis-Brusky at The Signal: “Even if there are zero successful lawsuits, the law has done its job, because it’s created an environment where abortion clinics will probably close their doors. Already, 96 percent of counties in Texas do not have an abortion clinic. It’s going to discourage the women who need it most—low-income women of color—from seeking an abortion, because the knowledge of and access to legal resources to get access to the procedure are insurmountable for the vast majority of women who need them.” “This creates an extremely dystopian future where red states and blue states use the mechanism to litigate away constitutional rights they don’t like. It strikes at the heart of the rule of law. The reason we have a Constitution is that it provides a bare minimum of rights. States can give you more rights, but they can’t give you fewer rights. Texas has taken a jackhammer through the floor of the right to abortion and left women in Texas in the basement.” “This would be the beginning of a failed state. In failed states, widespread power, violence, and coercion replace the legally sanctioned monopoly that states have on them. When states fail, then these dynamics come into play: citizens versus citizens. Violence erupts.” ——— Loyal Opposition Just how much influence does Donald Trump still have over his party? Tim Miller on why the former president’s enduring appeal is such a problem for the Republican leadership and conservative elites. Donald Trump is teasing another run for president of the United States. Not eight months since he left office, Trump is fueling speculation by saying things like “[I think you’re going to be happy]( when asked about trying for a comeback in 2024. He hasn’t exactly been shy about his desire to win back his old job, but Politico [reported]( week that “he’s signaling a heightened interest in reclaiming the White House—and laying the necessary groundwork to do it.” At the same time, a [new CNN poll]( of Republicans and Republican-leaning independents found roughly half of respondents “saying the party would be better off with a different nominee” in three years, even as an overwhelming majority believe he should be the party’s leader. Ambitious right-wing politicians like Florida Governor Ron DeSantis and former Vice President Mike Pence are weighing their options. How much influence does Trump still wield in the Republican Party—and how is he shaping its future? Tim Miller is a writer at large for The Bulwark and a former Republican operative, who was the communications director for former Florida Governor Jeb Bush’s presidential campaign in 2016 and the political director for [Republican Voters Against Trump]( in last year’s election. Miller says Trump remains hugely influential among Republicans, with polls showing that about half consider themselves more loyal to Trump than to the party overall. Miller believes that Trump would be the “overwhelming favorite” in the 2024 primary if he entered the race, noting that the other leading prospective candidates seem averse to criticizing the former president directly. It wouldn’t surprise Miller if Trump ended up facing no challengers at all—or merely getting a challenge from a token anti-Trump candidate on a political “kamikaze mission.” Ahead of next year’s midterm elections, Trump’s enduring influence is visible in Republican candidates either repeating his lies about last year’s election being stolen or declining to contradict them. It’s one of many reasons why, in Miller’s view, Trump has reshaped the party for the medium term and perhaps even the long term, including by altering the makeup of the Republican and Democratic electoral coalitions. ——— ——— [The Signal]( is a new, independent digital publication exploring vital questions in democratic life and the human world—and sustained entirely by readers like you. To support The Signal and for full access: We recently resolved a broken-link issue with our opt-out function. If you’ve received this in error, our apologies—you can immediately unsubscribe below. 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