But the new Texas law, which other states are rushing to clone, has fatal constitutional flaws — entirely apart from its attack on abortions protected by Roe v. Wade. The court’s notorious five-justice majority, which included all three of Donald Trump’s nominees, suggested that the court hadn’t previously encountered legislative schemes that confer on private individuals the power to veto the provision of lawful services. It purported to be procedurally stymied from blocking the Texas law’s manifest goal of snuffing out abortion services and wrecking the lives of many women during the year or more it will take the court to ultimately strike the Texas law down or admit that it is jettisoning Roe v. Wade.
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Not true. And a Massachusetts case established the precedent.
Decades ago, recalling the court’s early 20th-century invalidation of just such schemes in cases involving land use and zoning, we successfully invoked the civil parallel of the Ku Klux Klan Act to prevent the neighbor of Harvard Square restaurant Grendel’s Den from wielding a state-conferred veto power over the issuance of any liquor license within a 500-foot radius. That statute was enacted by Congress specifically to provide a federal judicial remedy for violations of constitutional rights when state judicial remedies were blocked, as they clearly are by the structure of the Texas abortion law.
In an 8-1 opinion by Chief Justice Warren Burger, no liberal himself, the Supreme Court in 1982 held that such veto power could easily be invoked for religious, ideological, or other illicit reasons that could well be undetectable, making the scheme unconstitutional on its face.
That same danger has again reared its ugly head. As with the Massachusetts liquor law, the Texas abortion law delegates quintessentially governmental power to private parties — in Texas, to literally anyone on earth with an objection to abortion, giving that individual or organization the unilateral and unfettered power to inflict criminal punishment on whoever assisted a woman, within the past four years, to terminate a pregnancy without being able to prove that the fetus didn’t have detectable cardiac activity.
In the Grendel’s Den case, in which a church vetoed the restaurant’s liquor license, we sued the state functionaries charged with ultimately handing out liquor licenses or respecting whatever veto was filed. So too here in the Texas case. Anyone threatened with the prospect of paying a bounty of between $10,000 and an unlimited amount (including all attorney fees) to whoever sues them for assisting a woman to end her pregnancy — damages that don’t reflect harm to the bounty hunters and are therefore wholly punitive — could sue the court officer charged with collecting the penalty to prevent that collection from ever taking place. Nothing the Supreme Court said or did in its Sept. 1 midnight decision rules that out. And Supreme Court cases striking down punitive damages that grossly exceed any harm to the plaintiff collecting them are obviously relevant where, as here, harm to the plaintiff is zero.
Someone confronted with the threat of having to pay such a bounty could also sue the bounty hunter directly rather than sue any state official. The reason? That veto-wielder would indisputably be acting “under color of law,” triggering the availability of Section 1983, the bedrock for civil rights lawsuits. And any group threatening to go after clinics or others helping women could be sued for damages, including punitive damages, for conspiring to violate a person’s civil rights under 42 USC sec 1985, without having to meet any “color of law” requirement.
Just as the prospect of federal criminal prosecution could make those tempted to invoke the Texas system think twice before becoming bounty hunters, combining that prospect with the knowledge that anyone you sue in Texas to collect a bounty could immediately countersue for double or triple damages should serve to thaw the chill that the Texas Legislature was counting on to stamp out abortions in that state.
In the Grendel’s Den case, the unbridled veto power interfered not with a service to which anyone had a constitutional right, like abortion, but just with serving liquor. It was simply being governed by someone unaccountable to nobody that offended the Constitution. In the Texas case, even a judge or justice convinced that Roe v. Wade was wrongly decided and that there is no constitutional right to end a pregnancy would need to confront the long line of precedent establishing that due process of law, enshrined in the Fourteenth Amendment, does not permit, to quote the court in Grendel’s Den “delegate[ing] to private, nongovernmental entities power to veto … a power ordinarily vested in agencies of government.” As the court said, it is difficult in such situations to imagine “any ‘effective means of guaranteeing’ that the delegated power ‘will be used exclusively for secular, neutral, and nonideological purposes.’ ” As one of us wrote in 1973 in defending the court’s Roe v. Wade ruling, abortion is particularly fraught with deeply religious as opposed to secular concerns and commitments. Just because the religion clauses are not directly implicated by the Texas scheme, it doesn’t follow that the long line of decisions into which Grendel’s Den fits becomes irrelevant in the effort to legally defang the Texas abomination.
Whatever force one attributes to Supreme Court precedent, it must be followed unless and until expressly overruled. To turn a blind eye to the blatant departure from its own precedent, as the Whole Woman’s Health decision did, is for the court to deny its own legitimacy and invite chaos to replace the rule of law. Neither the Justice Department nor private litigants can ignore the illegality of granting bounties willy-nilly to private individuals for their own benefit, an unconstitutional money-making scheme if ever there was one.
Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard and the Justice Department’s first head of the Office of Access to Justice. Follow him on Twitter @tribelaw. David Rosenberg is Lee S. Kreindler Professor of Law Emeritus at Harvard Law School.