Texas’s S.B. 8, colloquially known as the “Texas abortion law,” which was enacted in September 2021, did more than just sharply curtail abortions in Texas to the point of a complete ban after six weeks. It also introduced a new way of navigating within the gray area between state and federal law. It established a bounty system that deputized ordinary citizens, allowing any individual to sue anyone involved in providing abortions while rewarding each “bounty hunter” with a $10,000 legal fee.
As the law does not provide the state government with the mechanism to enforce the ban, choosing to rely on citizens instead, those who oppose the abortion ban within the state of Texas have no governmental body to sue. The law is written to evade judicial assessment of any kind. What S.B. 8 accomplishes is unprecedented: Enforcement is taken entirely out of the hands of state jurisdiction in a complete upheaval of the judicial system.
When finally brought to the Supreme Court, S.B. 8 was upheld with a 5-4 majority. While the ethical and medical aspects of this law are still being debated extensively, the Supreme Court essentially defended the constitutionality of S.B. 8 with this decision in December 2021. In a surprising turn of events, Chief Justice John Roberts joined the dissenting opinion, stating that he would preserve the previous status quo of state enforcement “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner,” and he’s right. Who is to take responsibility for state actions if the state is removed from the equation?
Yet the effectiveness of Texas’s new law is undeniable. Clinics across the state have chosen to comply with S.B. 8 and abortion providers in neighboring states have seen an overwhelming increase in patients as a result. So it’s not surprising that this success has encouraged other states to adopt this “bounty hunting” loophole.
Shortly after S.B. 8’s debut, several states began to consider a bounty system. Within just the realm of abortion, states such as Idaho and Missouri have taken action to enact a bounty system in conjunction with abortion restrictions in order to “nullify Court rulings.” However, the allure of a bounty system has spread beyond its initial issue.
Florida, for one, did not waste a moment before implementing this new tactic. In December 2021, Florida Gov. Ron DeSantis proposed “Stop the Wrongs to Our Kids and Employees Act” (Stop the WOKE Act), which would allow students, parents, employees and others alike to sue schools and businesses that teach critical race theory, as defined by the state. Gov. DeSantis’s actions, however, are largely performative, as critical race theory was never a particularly popular subject within the state to begin with.
Other states have applied this system to more enforceable issues. California Gov. Gavin Newsom has not been subtle in his contempt for S.B. 8, both ethically and constitutionally, stating that “the Supreme Court should never have opened this door (to a bounty system) in the first place.” Yet he claims that his own adoption of the bounty system in order to restrict the production and distribution of ghost guns — “unregistered and untraceable homemade weapons that can be made with a 3D printer or assembled from a kit” — is meant to “save lives instead of harming them.”
Newsom argues that his interpretation of the law would still follow all constitutional rights, unlike S.B. 8, which “ blatantly flouts Roe v. Wade’s fundamental protections,” and hopes that if California’s new bill is overturned, the court will see to the end of S.B. 8 as well. Yet Gov. Newsom’s actions have been critiqued, correctly, as showing support for this new reality of bounty hunting.
It is essential to analyze the loophole S.B. 8 has provided Texas. Roe v. Wade and Casey v. Planned Parenthood both set up frameworks that prevent state intervention in abortion towards the beginning of a pregnancy, albeit in different ways, yet S.B. 8 is able to bypass this framework due to its distance from state jurisdiction.
A future for bounty systems almost guarantees other such instances of loophole exploitation and, perhaps more importantly, the ability to bypass the court system. The 14th Amendment, which works to protect Americans from state actions, is no longer applicable in a bounty system because the state is removed from enforcement. Without an obvious actor in this situation, responsibility is dispersed and due process is left behind in favor of a political agenda.
Reva Lalwani is an Opinion Columnist and can be reached at reval@umich.edu.