Whatever you think of that new Texas anti-abortion law, you must admit that it is clever.
The law puts responsibility for enforcement in the hands of … anybody. Thus, there are no officials to enjoin, no state actions to overturn, none of the usual grounds for getting a court to intervene on behalf of a woman’s right to choose.
Senate Bill 8, as the measure is known, allows ordinary Texans to sue people and groups suspected of aiding or abetting an abortion. Also, to collect up to $10,000 in damages if the suit succeeds. Defendants cannot recoup their legal costs if it fails.
What is especially interesting about the law is that it taps a deep vein in American history and public imagination. I’m talking about vigilantism.
The word dates to Roman times, when squads of slaves called vigiles (from the Latin for “awake”) stood watch for fires, burglars and other nocturnal threats.
U.S. history is a pageant of vigilantism: the Boston Tea Party of 1773; the 1830s “vigilance committees” that protected slavery in the South through use of violence; the late-19th century Ku Klux Klan, which adopted that approach against freed slaves (and, later, Catholics); the Old West, where law enforcement was spread thin, horse thieves were strung up from tall oak trees and disputes were settled with a six-gun.
American popular culture has been kind to vigilantes, embracing a vast pantheon of heroes, superheroes and antiheroes: Robin Hood, Zorro, Superman, Batman, Wonder Woman, John Wick and armies of others who hit hard and take the law into their own hands.
In the 1980s, DC Comics’ “Watchmen” series even introduced a character called “Vigilante,” a district attorney who sets out to avenge the death of his family at the hands of mobsters. True to form, he bends the rules.
Therein lies the problem with vigilantism. It’s an affront to civilized society. Though many U.S. jurisdictions allow acts of self-defense and victim-saving in narrow circumstances, the state retains a rightful monopoly on the use of force and the rendering of judgment. If you see an apparent crime underway, it’s safer and more legal to call the cops than to act like one.
In addition, vigilantism ignores some fundamental aspects of the rule of law, including neutrality, evidence, due process and the right of appeal. Instead, vigilantes typically serve as judge, jury and executioner. Like Scott Roeder, who in 2009 murdered an abortion doctor in Wichita. Roeder argued that he was doing society a favor.
In attempting such favors, vigilantes often commit crimes themselves. They’ve given us revenge killings, lynchings, church burnings, cross burnings, anti-immigrant and anti-gay violence and other misdeeds — all in the name of justice. In their view, the civil authorities aren’t up to the task.
Nobody is accusing anti-abortion activists of going that far, though they have attacked family planning clinics and harassed pregnant clients with such assiduity that Congress in 1994 felt the need to outlaw such behavior. More likely, though, the impulse behind the Texas bill is a strain of vengeance that psychologists call “social vigilantism.”
Like townspeople of the wild West, social vigilantes are inspired to enforce their idea of appropriate behavior on society at large for fear that nobody else will. They feel an obligation to hector someone whose conduct falls short of their personal standards, even if it is legal and does no real harm to the hectorer. Social vigilantes are found on both the left and the right, calling for sanctions on football players who kneel for the national anthem and on conservatives who speak on university campuses.
What’s new is that Texas Republicans have provided legal cover for anti-abortion activists to impose their standards on society at large. Social vigilantism has crossed the line to legalized harassment.
That could be dangerous, and not just to abortion providers. Imagine if one or more Democratic-run states respond to Texas by allowing their own residents to sue abortion opponents, gun retailers, anti-vaxxers, anti-maskers or others who, it could be argued, actually do endanger society. Already, opponents of the Texas law have flooded its tipster hotline with fake claims, acting like vigilantes themselves.
I certainly hope the courts step in to stop this madness before it gets out of hand. Otherwise, the idea of federalism, of civility and of America itself might not survive.
That almost sounds like a job for Superman, Batman, Wonder Woman and the whole superhero universe. At least they know the difference between law and chaos, between justice and vengeance.