Laurence Tribe, a prominent former Harvard law professor, recently published a column in the Washington Post proposing a legal way for the Biden administration to block Texas’ now infamous abortion law — the one that permits anybody in the world to collect $10,000 by suing anyone in Texas involved in performing an abortion or aiding and abetting in an abortion that takes place after the first six weeks of pregnancy.
“Attorney General Merrick Garland has the power, under federal civil rights laws, to go after any vigilantes who employ the Texas law to seek bounties from abortion providers or others who help women obtain abortions,” Tribe wrote.
He cites Section 242 of the federal criminal code. Passed to suppress the Ku Klux Klan’s war on former slaves who had the temerity to vote, the law makes it a crime for those who “under color of law” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.”
The penalty provided is a fine and up to a year in prison. If a victim was kidnapped or killed — as often happened — the perpetrators could receive life sentences, or even the death penalty.
Tribe’s argument is based on the incontrovertible fact that until Roe vs. Wade is reversed, the law of the land is that women have a constitutional right to obtain abortions considerably later than six weeks into their pregnancies. The current U.S. Supreme Court may well strike down Roe vs. Wade, but it could take a year or more.
The new law, which passed the Legislature as Senate Bill 8, has virtually shut down Texas’ abortion clinics, and by a 5-4 vote the U.S. Supreme Court refused to block the law while it is being contested in court. About 55,000 abortions were performed in Texas last year, the vast majority of them after six weeks. So tens of thousands of Texas women will be deprived of their constitutional rights by the statute.
Tribe makes a powerful argument, but I think Texas could well handle the issue itself. And we could do so not by going after the “vigilantes,” but after the people who empowered them.
Section 39.03 of the Texas Penal Code says this: “A public servant acting under color of his office or employment commits an offense if he … intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.”
Those responsible for depriving these women of their constitutional rights include the 83 members of the Texas House of Representatives and the 18 senators who voted for the bill. It also includes Gov. Greg Abbott, who signed the bill into law. (The only San Antonians who voted for the bill were Republican Reps. Lyle Larson and Steve Allison.)
Since the law refers to “public servants” without geographic limitation, the five U.S. Supreme Court justices who voted to keep the law in effect while it goes through the lengthy appeals process may also be implicated.
Some of the members of the Legislature could credibly get off the hook by claiming ignorance. The body does include a few members who are either intellectually challenged or willfully ignorant. But many have law degrees, and all consider themselves experts on and champions of the people’s rights. It defies the imagination that no one in all the hours of committee hearings and floor debates pointed out that Roe vs. Wade established a constitutional right to abortion in 1973.
And would any of them be shameless enough to brag that they didn’t read the one chapter of the state’s Penal Code that applies to them, the one titled “Abuse of Office”?
The governor has absolutely no excuse. He was attorney general for 12 years and a Texas Supreme Court justice for five.
And the five U.S. Supreme Court judges? They were alerted by the four members of the minority, including Chief Justice John Roberts. Justice Sonia Sotomayor stated it most baldly: “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”
The issue seems clear to me, but I’m not a lawyer. So I checked with one of San Antonio’s top experts on Texas criminal law. Jay Brandon has served in the appellate section under four Bexar County district attorneys. He has written briefs on every aspect of Texas criminal law, including the official oppression law. And before going to work for the DA’s office, he served as a clerk for two separate judges on the Texas Court of Criminal Appeals, our highest court for criminal matters.
I expected Brandon to find a problem with my argument. He didn’t.
“I think it fits,” he said of the official oppression law, though he did chuckle when I mentioned the U.S. Supreme Court justices. He also made it clear that he spoke only for himself, not for the DA’s office. He had already observed wryly that the Legislature “not only created a class of vigilantes, they also armed them,” a reference to the new permitless carry law that removes the requirement that gun toters obtain licenses.
Brandon said charges could be brought in Austin, where the law was passed, or in any county where women were deprived of abortion rights.
Since most abortions take place in clinics in the state’s major cities, which are heavily Democratic, for a district attorney to attempt to protect women from “public servants” who violate their constitutional rights would hardly be a political liability.
A University of Texas/Texas Tribune Poll last spring showed Texans fairly closely split on abortion, but among Democrats 65 percent said our abortion laws should be less strict and 13 percent said they should remain as they are. Only 8 percent wanted them stricter. Jury pools in places like Austin, San Antonio, and Houston would be sympathetic to the women.
Official oppression carries a maximum punishment of a maximum $4,000 fine and up to one year in jail. Brandon said public officials convicted of thousands of separate counts under the law would almost certainly receive concurrent jail sentences, limiting their incarceration to one year no matter how many women filed charges. But it is possible, Brandon said, that a judge could assess $4,000 fines for each of the victims of the “public servants.”
Unfortunately, the women who filed charges could not collect a bounty for their efforts, pains, and support of the children many could not afford.