Since the Supreme Court ordered to uphold the New Texas Abortion Law last week – making abortion after the sixth week of pregnancy practically illegal – opponents have been concerned not only with the law’s unconstitutional content and its implications for women’s rights all over the country, but also with how the law successfully bypassed Roe v Wade.
The law avoided being struck down by the Supreme Court not because it is substantially different from any other anti-abortion law that conservatives have tried to promote as part of their ongoing battle against Roe v Wade, but because of its drafter’s legal innovativeness: Republicans have successfully designed a law that allows this Conservative controlled court to ignore an undisputedly unconstitutional law, for purely procedural reasons.
The main concern raised against the court’s ruling in this regard was that it supports the politically-driven weaponization of legal innovation against constitutional rights. But one-sided formalism is not the only problem with the court’s ruling. The details of S.B.8 conceal a further and even more troubling evil, which the court’s ruling legitimizes: the radical privatization of law enforcement.
Ordinarily, when someone wishes to challenge an abortion law, she sues the government officials who oversee law enforcement. This time, in order to dodge judicial review, the Republican legislators decided not to criminalise the act of abortion itself, but rather to turn it into a civil issue. Since it is a ‘civil’ case, government officials have no power to enforce the law. The state prosecutor, or the police, cannot bring charges against a woman who decided to perform an abortion and therefore, ostensibly, there is no one to sue. Instead, the law deputizes the citizens of Texas to sue anyone they suspect could be involved in aiding someone seeking an abortion: clinics, doctors, friends, and family of the patient – you name it. Moreover, to ensure that people act upon it, the law includes incentives. Potential complainants are offered bounties if they sue and win, in addition to the coverage of their attorney’s fees. Hence, Texas’s legislature has given official backwind for concerned citizens at best, and organised groups of vigilantes, financially supported by conservative pressure groups, at worst.
There are good legal arguments to be made about why this manipulative law should not prevent the court form reviewing its constitutionality, and these were indeed voiced by the dissenting Justices. But the fact that the Supreme Court allowed the Texan legislators to outsource law enforcement to private citizens could set an extremely troubling precedent for an additional reason.
It is no coincidence that hitherto, Republicans’ efforts focused on attempts to criminalize abortions. Criminalization means public condemnation: We, as a society, decide to condemn a certain behaviour and put it outside of the boundaries of legitimate action; it is a matter of public decision about values. This is the reason why, normally, only public officials can charge someone with crime – they are representing the public, and not the private citizens who were harmed by the criminal act.
A society in which a group of people can mobilize their economic and political power to privately persecute others in order to impose their own set of values, is a society that is not run by the rule of law, but by force and fear – like in what political philosophers call ‘the state of nature’, a hypothetical condition of human beings before or without political association.
For hundreds of years, the ‘state of nature’ has been used by political philosophers as a term describing human society as it was before the formation of the state. In this anarchic and lawless condition, every individual is in charge of protecting themselves and their families, and misdeeds are punished according to each individual’s personal conception of justice.
The fundamental problem with the private adjudication and enforcement of rights in the state of nature, the philosopher Chiara Cordelli explains, is that it subjects ‘the power of choice of some to the will of others in a specific way’. The private enforcement renders the determination of someone’s rights dependent on someone else’s’ unilateral judgment, thereby subjecting her power of choice to someone else’s arbitrary will.
The Texas Abortion Law, therefore, brings the United States closer to the state of nature in two respects. First, the rights of a Texan woman who wishes to have an abortion are now subject to the arbitrary private will of her fellow citizens, who get to decide whether to sue her or not. Second, the prerogative of publicly condemning an act – in this case, abortion – has been taken away from the United States’ political and judicial public institutions and delegated to Texan private citizens (of a particular political and religious persuasion).
Ironically, it was Fredrich A. Hayek – the Republican Party’s intellectual hero – who time and again emphasised that the arbitrary application of the law is fundamentally inimical to human freedom. [W]hen we obey laws’, wrote Hayek, ‘in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man’s will and are therefore free’, adding: ‘Because… no man’s will decide the coercion used to enforce it, the law is not arbitrary’. It is not the first time that, when it comes to promoting their political goals, Republicans suddenly relinquish their self-proclaimed commitment to freedom and fight against arbitrary power. But their hypocrisy is nonetheless staggering. Maybe for this reason, Hayek also insisted that he was not a conservative, astutely observing that ‘In general, it can probably be said that the conservative does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes’.
English philosopher Thomas Hobbes famously described in the ‘state of nature’ as a reality characterized by “continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short”. The Supreme Court Justices have had many excellent reasons to strike S.B.8 down. The evil of undermining the public function of the American Government and taking Americans back to the state of nature should also be added to the pile.
Shai is a doctoral student in political theory at Oxford University and a research fellow at Molad – The Center for the Renewal of Israeli Democracy.