“To Think That SB8 Is Anything Less Than Unconstitutional Is Deeply Disturbing”

A Q&A with attorney Marissa Roy on why SB8 in TX gives the anti-choice movement free license “to do whatever they want.”

This is the second of a three-part series THE PUBLIC is doing on reproductive justice in America. Read the first article about the dangerous stronghold of Catholicism here.

TThere is more than a small identity crisis coursing through Texas right now. The state motto is “friendship” — “Tejas” is a Caddo Indian word meaning “friend” — but SB8 (the notorious “heartbeat bill” that went into effect September 1st) has pitted the 29 million citizens of Texas against one another.

Strange kind of friendship indeed.

In addition to banning all abortion after 6 weeks — which amounts to a near-total ban as the majority of women don’t even know they’re pregnant until long after that window — SB8 also introduced sanctioned bounty hunting, offering $10,000 per illegal abortion for those successful in identifying clinics and individuals who have violated the law.

Even Atwood couldn’t dream this up.

And if criminalizing women’s bodily autonomy and deputizing citizens wasn’t enough, Texas Governor Greg Abbott also just signed Senate Bill 4, which prohibits a person from: “providing an abortion‑inducing drug to a pregnant woman without satisfying the applicable informed consent requirements for abortions.” (Meaning the physician must explain the abortion method and any risks associated — both physical and psychological.)

Anyone who “intentionally, knowingly, or recklessly violates” the bill faces a state jail felony offense — which is punishable by 180 days to two years to jail and a fine not exceeding $10,000. The law is poised to go into effect in December.

I got the chance to speak with Marissa Roy — a staff attorney with PRP — to understand how unusual SB8 is (even for a justice system as fraught as America’s) and if there’s any silver lining or hope to be had in what increasingly feels like dystopian fiction.

Marissa Roy // Public Rights Project // Staff Attorney

You’ve watched this case carefully and have been swimming in these waters a lot. Can you tell me where we’re at now in Texas — can you break down what SB8 means for the state? What should people know? What’s at stake?

Marissa: I think what’s really unique about this law is that the government is not tasked with enforcement Texas is giving the incentive to private citizens to turn on each other and to try to be bounty hunters essentially.

SB8 makes every person a potential law enforcer, which empowers groups in Texas that are already radically anti-choice, the same people that have been targeting abortion clinics or infiltrating medical conferences with recording devices. They’ve been vigilantes in a sense for such a long time, but now Texas is giving them full authority and a monetary incentive to be vigilantes.

One aspect I worry about, in particular, is the potential for this law to fuel domestic abuse and blackmail. Imagine someone in an abusive relationship who gets an abortion or drives a friend to get an abortion and the abusive partner can threaten them with a lawsuit. That’s one scary part of the law of giving individuals that level of authority…

Can I interrupt for one second? I’m curious. Where, when, and how have we seen laws like this being used before? Is this unprecedented? Where we’re offering bounty money to private citizens?

Marissa: It’s pretty unprecedented. We don’t really allow individuals to engage in criminal law enforcement — technically the law gets around it by making a violation of SB8 a civil offense — but as a rule, we don’t let private individuals police each other’s conduct. Especially when it’s not harming them. Criminal laws are supposed to be enforced with prosecutorial discretion and after investigations with guarantees of due process. SB8 just cuts out what are supposed to be process checks on suing someone and subjecting them to litigation. Even though this bill is civil and not criminal, it basically allows private individuals to operate as law enforcement.

So that’s really one disturbing piece of SB8: empowering private individuals to act as bounty hunters, many of whom are motivated to persecute women and everyone involved.

And the second disturbing piece is that suddenly SB8 expands the liability. This is something I know we’ve never seen before. So now not only are women, doctors, and clinics liable but so is the friend who gives advice or gives a ride, the Uber or Lyft driver, the volunteers who are spending their time at a Planned Parenthood, the librarian who gives information or lets someone use a computer to do a Google search to find abortion care. There are so many people who could be implicated.

This law has been written to be as expansive as humanly possible with no limiting principles and no checks for people’s rights or to try to give it some sort of process. It basically gives free license to the anti-choice movement to do whatever they want. And that’s terrifying.

Okay, dare I ask. Is there any silver lining here? Anything that would enable us to walk this back?

Marissa: The silver lining might be the federal case that’s pending right now to seek a preliminary injunction of this law. That hearing is next Friday, but honestly, unless the courts strike it down or there’s a state administration change, there’s nothing that can be done. And I had thought that the silver lining with this law is so absolutely absurd that the Supreme Court would stop it. But the Supreme Court didn’t. And that’s extremely troubling.

So next Friday, can you explain what’s going to transpire?

Marissa: So…there is going to be a hearing in District Court. The Federal government has sued the state of Texas, basically arguing that SB8 doesn’t let the federal government carry out activities in Texas that support women’s health, including abortion access.

And so the judge will have that hearing, and won’t necessarily give a ruling that day, but it’ll be pretty apparent how the judge is leaning and then shortly after there should be a ruling — and no matter what that ruling is, it will be appealed to the Fifth Circuit. And then the Fifth Circuit will decide — probably on an expedited basis. And then again, there will be this opportunity to go to the Supreme Court…

I think one thing that the Supreme Court has been trying to hide behind is framing their first refusal to stay SB8 as something purely procedural. That’s actually very misleading.

When a clinic in Texas asked the Supreme Court to stay the enforcement of SB8 (to pause essentially), the Supreme Court had to decide whether or not it thought that the case against the law is “very likely” to succeed. If the Supreme Court had thought that it was very likely that SB8 was unconstitutional, it would have had to grant the emergency stay.

But by saying that the case against SB8 did not meet the standard for an emergency stay, the Court was essentially signaling that it does not think that there is a “very likely” chance that SB8 violates the constitution. This gives us insight into how the Supreme Court views the strength of the case against SB8 and eventually how they would rule if they had to give an opinion about its constitutionality. And to think that SB8 is anything less than “very likely” unconstitutional is deeply disturbing.

Is there anything else I’m not thinking about that you think helps give context and educate people as to what we’re up against?

Marissa: I would really stress for people that this could affect anybody. Take Lyft and Uber company policies offering to pay legal fees for drivers sued under SB8 — those policies are determined by people in San Francisco. Will anti-choice groups go after them too? They could. If a pregnant person travels outside of Texas, will everyone they interact with in other states be potentially liable? Possibly. Could anti-choice groups target the many people who are sending money to abortion clinics in Texas? Yes, they could.

This law very purposely doesn’t define a scope for enforcement so it could literally impact anyone in theory. That’s really important to understand.

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@PublicRightsProject presents THE PUBLIC. Here you’ll find stories from the front-lines of one of the greatest shows on earth — the fight for civil rights — and why the American labor force is the center of that storm.

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Katie Tandy

Katie Tandy

writer. very creative human. editor @ medium.com/the-public-magazine. Former co-founder thepulpmag.com + TheEstablishment come for adjectives stay for justice

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