For more coverage on Texas SB 8, check out our special report.
The far right has long played a game of bureaucratic whack-a-mole as part of its efforts to roll back civil rights gains. This includes flooding legislative offices with calls from constituents on mailing lists, flooding the lower courts with experimental lawsuits filed by former Blackstone fellows, and refusing to give up when laws are repealed as unconstitutional. Their determination to weasel through loopholes resembles the pedantic genius of a 7-year-old who doesn’t want to go to bed yet—what if I play the rules this way? How about that way? The endurance is formidable.
Alliance Defending Freedom is the incubation center for this type of legal approach to dismantling protections around LGBTQ and reproductive rights. Founded in 1994, ADF funnels young Christian law students through their Blackstone Legal Fellowship and teaches its particular strategy for dismantling LGBTQ protections and pro-choice laws, a strategy that’s been used to great success in cases like Masterpiece Cakeshop v. Colorado. ADF connections show up in every branch of the federal government, thanks to years of slow work to gain footholds over the last 30 years. Supreme Court Justice Amy Coney Barrett and Sen. Josh Hawley of Missouri both have close ties to ADF through Blackstone.
Because ADF affiliates show up in nearly every big case like this, when the Texas near-total abortion ban passed into law I immediately went to look up the man who masterminded its particularly appalling strategy for undermining Roe v. Wade, and sure enough—there was ADF on his list of former income sources, revealed in the financial disclosures he had to submit when he was nominated for a position in the Trump administration.
Now, this tells us nothing about where the idea for SB 8 came from in particular, though we learned a bit more about that in the last few weeks. But it does tell us who exactly is supporting the people creating these novel legal approaches.
Texas SB 8 is set up to evade the privacy protections that Roe v. Wade is based upon in part by deputizing citizens to enforce its prohibition on abortion once cardiac activitity is detected. The law employs gossip and experiential observation to allow a civil suit to be levied against anyone who is known to have performed or aided an abortion in violation of SB 8.
The fun part about this bill is that the government doesn’t have to pay for these lawsuits—the minimum $10,000 bounty and associated court fees have to be paid by the defendant if they lose the suit. SB 8 sets up scenarios where similar cases could be filed in every county in Texas against a single abortion provider, by multiple plaintiffs, and the provider would have to pay to defend themself in all those cases.
This is interesting, because it appears to be an attempt to avoid situations like the North Carolina “bathroom” law from a few years back, which posed the problem of: If lawmakers are making it illegal for trans people to use the bathroom consistent with their gender, how the hell will they enforce it? With cops performing genitalia checks at restroom doors to ensure that everyone is using the room with stalls that matches their assigned sex?
Tennessee lawmakers are facing a similar logistical nightmare with their new bathroom laws targeting trans access to facilities. The use of surveillance and the invasion of medical privacy to criminalize medical autonomy around gender and reproduction is so contrary to basic American values that it’s difficult to imagine these attempts working long-term. It’s a running issue of enforcement logistics when any of the trans-kids-in-sports bills get brought to a state house floor. How can you enforce such a requirement without essentially groping children on the soccer field? What is necessary to prove that someone meets such a regulation, and how will it be enforced? Who will be checking up on it and making sure that the law is followed? Such questions ended up getting the North Carolina bathroom bill defanged, and eventually aged out of effect.
The reality is, though, that this new Texas law—despite attempts to use civil court proceedings to sidestep logistical challenges around enforcement—is still quite vulnerable to these same lines of challenge. What’s to prevent every abortion rights supporter with means from filing a lawsuit in every county in Texas against, say, the attorney general of Texas, accusing him of aiding and abbeting an abortion? A lawsuit might prove those allegations to be false and the attorney filing the lawsuit might find themselves subject to financial sanction, but the resulting flooding of an already oversaturated legal system that’s fallen even further behind thanks to COVID-19 would be a nightmare of bureaucratic logistics.
These cases would almost certainly be thrown out as a waste of the court’s time—but what if not all of them were? What if the volume was so overwhelming that the legislature would have to step in and amend the law, defanging its ridiculous scope? The fact that such a strategy might actually work is testament to the failure of the pro-abortion left to strategize on the same level as the right by trying everything that might stick. The pragmatism of blunt strategic force seems to be working.
Ultimately, ADF and similar right-wing groups are succeeding with their strategy of overwhelming our civil systems as a substitute for having the will of the people on their side.
Their strategy—swamping state legislatures with increasingly draconian copycat legislation, and flooding federal courts with bogus “religious liberties” cases attacking civil rights gains—is rapidly rewriting civil rights law and undoing decades of progressive progress. Similar bills will be brought to the floor in other states next year, for certain. But the thing is: When pedantry is the game, both sides can play.