MBA Statement Supporting the DOJ’s Challenge of Texas' SB-8 Law in Defense of the Constitutional Rights of Individuals

Thursday, Sept. 16, 2021

The Massachusetts Bar Association condemns the recently enacted Texas abortion law known as SB-8 as a blatant violation of a woman’s constitutional right to privacy and an erosion of the rule of law.

Texas’ SB-8 was greenlighted by the U.S. Supreme Court in a 5-4 decision through its “shadow docket,” a method of rendering decisions without the benefit of full briefing or oral argument. This unprecedented decision effectively rendered Roe v. Wade moot in Texas. Crafted to thwart judicial review, the statute is reminiscent of the oppressive and discriminatory actions sanctioned under the Fugitive Slave Act of 1850 that set up a bounty-vigilante system by offering monetary awards for information about escaped slaves and the individuals who assisted them. SB-8 similarly infringes on its citizens’ bodily autonomy and incentivizes vigilantism.

This unconstitutional end-run around the established law of the land is particularly draconian in that it encourages private citizens to violate not only the rights of pregnant citizens, but also of any individual they believe has aided and abetted, or who intended to aid and abet, a person in aborting a fetus.

SB-8 avoided binding precedent and the Supremacy Clause by creating a private right of action for individuals who are empowered to act as bounty hunters. As Justice Sonia Sotomayor stated in her dissent, “It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.” This is exactly what SB-8 has accomplished.

In January 1973, the Supreme Court issued a 7–2 decision in Roe v. Wade, ruling that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a "right to privacy" that protects a pregnant citizen's right to choose whether or not to have an abortion. By giving private citizens governmental authority to violate the privacy rights of not only pregnant citizens but also of the individuals who are perceived to have aided and abetted them, the U.S. Supreme Court has rubber-stamped an end-run around the concept of stare decisis. This threatens the rule of law.

Most importantly, the U.S. Supreme Court has created the most slippery of slopes. The decision is an open invitation for states to establish more statutes that infringe upon individual civil rights — statutes that, prior to the Court’s decision, were prohibited by the long-standing tenets of the U.S. Constitution. Indeed, lawmakers in South Dakota, Florida and a handful of other states have already signaled their intent to file similar laws.

Laws as insidious as SB-8 cannot be allowed to stand. The MBA strongly supports the challenge to the Texas law filed by the Department of Justice, which rightly seeks to defend and uphold well-established individual civil rights.