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Sheila Jackson Lee and Zoe Lofgren

House Judiciary Committee members Rep. Sheila Jackson Lee (D-Texas, left) and Rep. Zoe Lofgren (D-Calif.) are among 24 Democrats on the panel who sent a letter to U.S. Attorney General Merrick Garland on September 7, 2021 urging the Justice Department to prosecute "would-be vigilantes" seeking to enforce Texas' draconian anti-abortion law. (Photo: Andrew Harrer/Pool/Getty Images)

House Dems Urge DOJ to Prosecute 'Vigilantes' Enforcing 'Insidious' Anti-Choice Law in Texas

"As Justice Sotomayor wrote... 'it cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.'"

Brett Wilkins

Following U.S. Attorney General Merrick Garland's pledge that the Justice Department would "explore all options" to challenge Texas' recently enacted anti-choice law, two dozen House Democrats on Tuesday urged the DOJ to prosecute "would-be vigilantes" seeking to enforce the draconian statute.

"This ban is a clear violation of a woman's right to choose an abortion prior to fetal viability established nearly 50 years ago under Roe v. Wade."
—House Democrats' letter

Led by House Judiciary Committee Chair Jerry Nadler (D-N.Y.), the 24 Democratic lawmakers sent Garland a letter (pdf) calling on him to "use the full power of the Department of Justice to defend a woman's constitutional right to choose an abortion, a right now under assault by Texas Senate Bill 8."

"S.B. 8 effectively bans abortion after six weeks of pregnancy, well before many women know that they are pregnant," the letter states. "This ban is a clear violation of a woman's right to choose an abortion prior to fetal viability established nearly 50 years ago under Roe v. Wade."

The federal legislators add that the new law "also creates a private right of action that allows an individual to sue not only reproductive healthcare providers that violate this statutory ban, but any individual who 'aids or abets the performance or inducement of an abortion' in violation of the ban—all while specifically prohibiting state officials from enforcing the statute."

The letter continues:

S.B. 8 awards a bounty—a minimum of $10,000 and legal fees—to any individual who successfully brings a suit under the law. In Texas, women may now be reluctant to confide the fact of a complicated pregnancy in once-trusted neighbors, coworkers, and family members, any of whom might simply want a payday under S.B. 8.

This perverse system has not only a chilling effect on a deeply private decision-making process that is essential to a woman's personal autonomy, but is also just plain chilling. And our fears are hardly theoretical. Anti-abortion groups in Texas have already begun setting up anonymous tip lines to allow individuals to report on their fellow citizens. Other states are preparing to enact similarly dangerous laws.

The lawmakers call the statute's vigilante provision its "most insidious feature" and an attempt by Texas "to evade judicial scrutiny long enough for a clearly unconstitutional law to take effect."

"Indeed, in an unsigned 'shadow docket' ruling issued late Wednesday, the Supreme Court refused even to hold a hearing on the issues presented by this private right of action," they write. "Instead, over the dissent of four justices, including Chief Justice [John] Roberts, the court denied an application for emergency injunctive relief."

"As Justice [Sonia] Sotomayor wrote in her dissent to the court's ruling, 'it cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry,'" the letter notes.

"Similarly," it adds, "the Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law."

Letter signatory Rep. Sheila Jackson Lee (D-Texas) said Tuesday she would introduce legislation "to stop vigilante stalking" of people seeking abortions, while tweeting that "private citizens should not have standing or power to attack women and their doctors for exercising their constitutional right to choose!"

As Texas Gov. Greg Abbott defended the law's lack of exception for victims or rape or incest, Rep. Alexandria-Ocasio Cortez (D-N.Y) on Tuesday accused the Republican of "deep ignorance" about women's bodies and rights.

Also on Tuesday, a group of United Nations human rights experts condemned the Texas law as "profoundly discriminatory" and dangerous.

Meanwhile, across the border in Mexico, the Supreme Court of Justice unanimously ruled that a state law criminalizing abortion is unconstitutional, setting a precedent that advocates say is likely to lead to nationwide legalization of the healthcare procedure.


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