It’s exceedingly likely that the Supreme Court will overturn Roe v. Wade when the justices hand down their ruling in Dobbs v. Jackson Women’s Health Organization later this year. The court may ultimately decide, echoing a question by Justice Brett Kavanaugh during oral arguments in Dobbs last fall, that the Constitution is “neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”
What would the results of that democratic process look like? Dobbs centers on a 15-week abortion ban in Mississippi, which is the traditional means by which states have sought to ban the procedure, albeit with some tinkering on the exact timeline. Other states have so-called “trigger laws” that would impose similar restrictions on abortion the moment that Roe is overturned. But some states are going far beyond those conventional restrictions and, inspired by the extremism embedded in Texas’s notorious anti-abortion law Senate Bill 8—and the Supreme Court’s effective endorsement of that bill—are adopting more radical bounty-style laws, which offer cash rewards to would-be plaintiffs for successfully hunting down and suing those who facilitate a woman’s access to abortion.
Last December, the Supreme Court declined an opportunity to nip this trend in the bud in Whole Woman’s Health v. Jackson. The conservative majority largely agreed with the state of Texas that S.B. 8 had effectively immunized itself from federal judicial review, at least in the short term. The lawsuit is still ongoing because the justices allowed the clinics to pursue it against a subset of state health officials who would be obligated with enforcing part of it. But it will likely be moot in a practical sense once Roe is overturned, leaving its tacit acceptance of bounty-style laws as its ultimate effect.
Other states have begun to take their cues from the Supreme Court’s decision. In Idaho, the state Senate recently approved a bill that would enact a bounty-style anti-abortion law similar to the one passed in Texas. It is more narrowly focused than its Texas cousin: Instead of opening up anyone who “aids or abets” a woman to potential lawsuits, it exclusively targets the doctors and nurses who perform them. And instead of letting virtually anyone bring the lawsuit against them, it narrows the potential plaintiffs to “any female upon whom an abortion has been attempted or performed, the father of the preborn child, a grandparent of the preborn child, a sibling of the preborn child, or an aunt or uncle of the preborn child.” The law excludes fathers, but not other family members, if the conception was the result of rape or incest.
A state lawmaker in Missouri wants to go even further. In amendments to abortion-related bills in recent months, Representative Mary Elizabeth Coleman proposed a bounty-style mechanism that would cover a wide variety of third-party actions that could facilitate an abortion. Those who provide information about obtaining an abortion, transport a woman to a place performing it, help pay for it or cover it with insurance, or “provide Internet service” that “encourages or facilitates” the procedure could be sued under the law in most circumstances. Though these bills would usually forbid lawsuits against the woman herself, that exemption has the practical effect of making it harder for a woman to challenge such a law in the first place.
Bad laws get passed all the time in the United States. What makes bounty-style laws so pernicious is how they undermine the way that civil rights laws and constitutional protections are supposed to work. Section 1983, the flagship federal civil rights mechanism for lawsuits, is designed to protect private individuals from the depredations of state and local officials. In Jackson, the court effectively ruled that S.B. 8 had found a way around it in the short term. As a result, Texas and the conservative justices legitimized a too-clever-by-half way to deprive someone of their federal constitutional rights by making it much more difficult to vindicate those rights in court.
“The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings,” Chief Justice John Roberts wrote in a partial dissent joined by the court’s three liberal justices. He appeared to be keenly aware of the stakes. “Indeed, ‘if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery,’” he continued, quoting from one of the court’s precedents. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”
There is also a chilling strain of authoritarianism at work here. It is one thing to simply ban abortion; the states and Congress ban plenty of things, for good or for ill. If enough voters think such a ban is wrong, they can theoretically vote out the lawmakers who did it and get it lifted. Bounty-style laws diffuse that feedback loop by directly turning Americans against each other: neighbor against neighbor, family member against family member, citizen against citizen, on issues where Americans have profound and sometimes irreconcilable disagreements. Just as Warsaw Pact dictators relied on vast networks of informants to achieve their goals in the twentieth century, so too will right-wing state lawmakers pit their constituents against each other to accomplish theirs.
These tactics are proliferating beyond the abortion context. A Florida bill, described as the “Don’t Say Gay bill” by its opponents, aims to severely restrict discussions of sexual orientation and gender identity in public schools. The bill also states that school officials may not “discourage or prohibit parental notification of and involvement in critical decisions affecting a student’s mental, emotional, or physical health or well-being,” a move that could compel educators to out LGBTQ students to their parents. If a parent believes that a school district is violating the law, they can sue for damages or force the state to appoint “special magistrates” to investigate educators at the district’s expense.
On Thursday, the Florida legislature also passed the Stop WOKE Act, a bill proposed by Governor Ron DeSantis last year as part of a nationwide panic over critical race theory. It prohibits schools and businesses from holding diversity training sessions that purport to make any students or employees feel guilty about historical injustices, promote the concept of privilege, or fall within other broad categories about perceived racial inequities. When DeSantis proposed the bill last December, he touted that it would include a private cause of action for students and workers to sue those who broke the law, with the apparent goal of creating a chilling effect on discussions of race and inequality.
These laws can vary in their harshness and punitiveness, with those involving abortion typically harsher and more punitive than those deployed on other culture-war battlefields. But while the damage they do to individual citizens may vary, the harm these laws will do to American civic life is incalculable. To abandon the challenges of democracy, in favor of a chaotic landscape of citizen bounty hunters, is the coward’s way out. And cowardice is what best describes the actions of the lawmakers who propose these bills when they foist accountability for their chilling effects onto their own constituents and other third parties, perhaps in tacit recognition that their ideological goals are more unpopular, and more harmful, than they’d care to openly admit.
