There is a bumper sticker slogan that’s popular among gun advocates: My rights don’t end where your feelings begin. You’ll find it at shooting ranges, Trump rallies and all over Etsy, where its emblazoned t-shirts, coffee mugs, lawn signs and face masks. At the Supreme Court on Monday, Texas Solicitor General Judd Stone argued the opposite: Texans should not be allowed to exercise their constitutionally-protected right to an abortion, he explained, because doing so might hurt someone’s feelings.
Over three hours, lawyers representing abortion providers, the state of Texas, and the federal government volleyed with the nine justices over Texas’ Senate Bill 8, a law that effectively bans abortion after six weeks, before many people even know they are pregnant, with no exception for rape or incest.
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SB 8, which went into effect in September, empowers private individuals to sue the doctors, nurses, clergy, friends, partners of any person seeking an abortion in Texas for $10,000, plus legal fees. Litigants don’t need to know the patient, or even live in the state of Texas — all they need to do is identify a target who could be credibly accused of “aiding and abetting” an abortion, no matter how tenuous that person’s connection to the procedure. Even a taxi driver who dropped a patient to the clinic could be liable under the law.
At issue on Monday was the question of whether either abortion providers or the Biden administration can sue in federal court to block S.B. 8. Normally, in order to do that, they would need to sue a state official charged with enforcing the law, but S.B. 8 is “enforced” by private individuals. So the question becomes whether the state is deputizing individuals to enforce its laws, or if those individuals are acting of their own accord. That is what the court’s most reliable arch-conservative, Justice Clarence Thomas, was interested in on Monday.
“Why wouldn’t you consider the S.B. 8 plaintiffs to be sort of private attorneys general?” Thomas asked Texas Solicitor General Judd Stone. Wouldn’t these people need a reason of their own to sue — an injury of some sort?
Yes, Stone replied, it could, for example “be akin to the injury suffered in the tort of outrage” in which a person experiences “extreme emotional harm” by simply becoming aware that an abortion took place. In other words: a person would have grounds to sue because hearing about an abortion hurt their feelings.
The “tort of outrage” is a real legal concept. In most states it’s known as “the intentional infliction of extreme emotional distress.” But legal experts familiar with the statute are skeptical of Stone’s argument. To satisfy the law, John Goldberg, a Harvard Law School professor and an expert in tort law and theory explains, the behavior in question has to be not only both “extreme and outrageous,” but specifically “intended to cause severe emotional distress.” And, Goldberg adds, ”the intended victim” — the person suing under Texas’ law, in this scenario — “actually has to experience the severe distress.”
There are two big problems with Stone’s logic, Goldberg explains. First, the Texas law is very clear that it doesn’t require an injury — anyone can sue under S.B. 8. But, he adds, if someone did sue for “outrage,” they would still have to prove that the person seeking the abortion caused them emotional distress “intentionally and through extreme and outrageous conduct.”
“As long as there’s a right to abortion under the U.S. Constitution, it can’t be that the provision of an abortion is extreme and outrageous conduct,” Goldberg says. “It’s legal conduct.”
Fordham law professor Benjamin Zipursky agreed. “There has to be some kind of off-the-wall, completely outrageous behavior… the kind of crazy, outrageous behavior that will make someone stand up and say ‘Outrageous!’ That’s literally the textbook definition, so it’s not for this kind of case at all,” Zipursky says. “It’s just kind of out of the blue.”
Prodded by Thomas on Monday, the Texas solicitor general tried to imagine a hypothetical situation in which an S.B. 8 litigant could reasonably claim the kind of injury he suggested might exist. “An individual discovers that someone — a close friend of theirs who they’d spoken with about pro-life issues and about abortion — has chosen instead to have a late-term abortion in violation of S.B. 8, and they were very invested, basically, in that child’s upbringing and the child’s coming into being,” Stone offered.
None of the individuals who have filed complaints under S.B. 8 come close to the criteria Stone laid out. All three cases were filed by litigants outside the state of Texas — two disbarred attorneys and one attempted arsonist — with no connection to patients treated by the doctor they sued.
S.B. 8 may not have provided relief for the kinds of victims Stone imagined could exist someday, but the law has been incredibly effective in the two months it has been in effect. Abortion access in the country’s second largest state has largely disappeared. Clinics have ceased providing the procedure to patients past six weeks gestation out of fear of the torrent of lawsuits they might face. Pregnant Texans, meanwhile, have been forced to seek medical care out of state or self-administer abortions at home. Monday’s arguments at the Supreme Court could change that, if a majority of justices agree to temporarily block the law.
It’s unclear when the justices will issue a decision. The court moved with unusual speed in this case, scheduling oral arguments less than two weeks after it agreed to hear challenges to SB 8, causing some court watchers to predict a ruling could come in weeks, instead of the several months it would typically take.
Until then, Texans will be left reading the tea leaves to guess where the majority of justices will come down on the issue. One hint that the decision could be favorable to abortion rights supporters came from an unlikely place on Monday: a gun rights organization, which filed a brief expressing concern that if S.B. 8 were allowed to stand, it could be copied for law that would allow lawsuits against gun users, infringing on their second amendment rights. The court’s newest appointee, Brett Kavanaugh, pressed the Texas solicitor general on the issue on Monday.
Say a law were passed that held “everyone who sells an AR-15 is liable for a million dollars to any citizen,” Kavanaugh said. Would the same legal principles apply? Yes, essentially, it would the Texas solicitor general replied.
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