If the U.S. Supreme Court ultimately upholds the Texas anti-abortion law, known as SB 8, far more than Roe v. Wade will be overturned. America’s courtrooms could be turned into a free-for-all that will inevitably erode justice.
One of the key principles of civil courts throughout the western world is the concept of standing, which sharply limits who can sue. While any of us can go to court at any time and file a civil lawsuit, unless we have a sufficient legal interest and a documentable injury, our case will be tossed almost immediately for lack of standing.
Cases are tossed every day in courtrooms across the country for lack of standing and it helps prevent the courts, and individuals and businesses, from becoming bogged down with endless lawsuits from people who can’t show they’ve legitimately been affected. For example, imagine PolyMet with 10,000 lawsuits, versus the half dozen they’ve faced from organizations that have actually been able to demonstrate standing in court.
But, now, along comes the state of Texas, with a law that says everyone in the state has standing to sue anybody who helps a woman, in any way, obtain an abortion. The law is, admittedly, cleverly written, in a transparent effort to deny women a constitutional right.
And given the current makeup of the U.S. Supreme Court, there’s reason to believe that a majority of justices might look favorably at the desired outcome of this legislation. Yet the method of achieving that objective should certainly give the high court pause. In this case, regardless of anyone’s position on abortion, the ends definitely do not justify the means.
If a woman’s constitutional rights in Texas can be eliminated through a cleverly-written statute, so can anyone else’s constitutional rights, in Minnesota or any other state. And we’re not just talking about abortion. The U.S. Constitution provides our citizens with any number of rights, which a state Legislature, or even Congress, could decide to undermine through a similar legal strategy. The Second Amendment, for example, currently prevents a state government from denying citizens access to firearms, even though some state Legislatures might be amenable to severely restricting that right.
If the Texas legal strategy is upheld, there is nothing to prevent a state from adopting a law that, for example, gives anyone the right to sue a gun maker or dealer if any of the guns they sell or manufacture is ever linked to a violent crime.
Under the legal theory established by the Texas abortion law, the state isn’t banning the sale of guns, per se. In fact, the state isn’t enforcing anything. It is simply empowering members of the public to become vigilantes, using the courts to punish anyone who aids a perpetrator in the commission of a crime through the sale or manufacture of the gun they used. And if the Legislature in Minnesota or another state provides a hefty financial incentive to encourage such litigation, as was done with Texas’s anti-abortion law, every gun dealer in the state would be forced out of business virtually overnight.
Remember, anyone can sue if we’re operating by the new Texas rules. No need for a plaintiff to demonstrate they’ve actually been harmed in some way. No need to demonstrate negligence or bad faith. No limit on the number of individuals who can sue over a single incident. A single bad gun sale and a dealer could face 1,000 lawsuits by modern-day bounty hunters seeking their own piece of the action. Talk about a lawyer’s dream.
If this is the game that conservatives really intend to play, they should prepare for those on the other side to play as well, and perhaps use the new legal theory to defend some constitutional rights currently under threat. How about a state law that allows a person to sue anyone who tries to restrict another person’s constitutional right to vote? That might slow down the voter suppression bills continuously tossed into the legislative hopper in St. Paul.
Conversely, a Legislature could authorize anyone to sue any individual who fails to get a COVID vaccination or fails to wear a mask when required. Those who claim they should have the freedom to choose what happens to their own bodies should talk to the women in Texas who just lost that right based on a law that threatens to turn America’s courts into a joke.
Whether the U.S. Supreme Court favors the elimination of abortion or not, this is the wrong way to achieve it. The Texas law is a Pandora’s box. Justices should avoid the temptation.