Today's episode explores the new wave of "rights suppressing laws" with New York Times Op-Ed writers and legal scholars Jon Michaels and David Noll.

References

https://www.nytimes.com/2021/09/04/opinion/texas-abortion-law.html

Transcript

Noah Cole [00:00:02] I'm Noah Cole.

Amy Benziger [00:00:03] And I'm Amy Benziger

Noah Cole [00:00:05] This is talk policy to me.

[00:00:12] So these mining communities are being bullied. Just like we are. Bullied by the police. Bullied by the tabloids. Bullied by the government, and we now need to know what they need is touch and.

[00:00:25] Gays and minors not exactly the first thing most people associate with Senate Bill eight, which effectively bans most abortions in Texas. As of this recording, SB eight has been passed, paused and reinstated to huge controversy. As I was reading about SB eight, I thought about a film I saw recently called Pride. Pride is the true story of lesbian and gay activists in the early 80s. They were unlikely allies and some of the largest fundraisers for the families affected by the British miners strike. These activists saw miners beaten on TV and essentially starved out by the government. They saw a common enemy. The miners ended the strike after three hundred and sixty two days. But this incredible bond was formed.

Noah Cole [00:01:02] Miners marched in gay pride parades, which, as you can guess, was unheard of at the time. They fought against Section 28, a law introduced by Margaret Thatcher's government to prohibit the promotion of homosexuality. The law even banned teaching material that implied being gay was acceptable.

Amy Benziger [00:01:18] So we thought about this when I read an op ed for The New York Times written by our guest today, John Michaels and David Knoll. It's called We are becoming a Nation of Vigilantes. The piece is incredible. It helped me look at SB eight, otherwise known as the Texas Heartbeat Bill, as part of a series of laws affecting vulnerable communities across the US, including marginalized voters, transgender folks and the teachers of critical race theory

Noah Cole [00:01:39] in the case of SB8. Anyone can bring a lawsuit against someone who assists in an abortion before six weeks. This means doctors who perform the abortions, but it also means front desk workers at clinics and even family members that drive a sister or a daughter to get an abortion. SB8 incentivizes those lawsuits with a minimum payout of $10000. We start to see this in other areas as well. Teachers can be sued for incorporating race into their study of history. Coaches can be sued for letting transgender girls play soccer. The common thread among these laws is that they're being enforced by private lawsuits among citizens rather than through government action.

Amy Benziger [00:02:16] So John and David are pushing for people to view this not only as a pro-life or pro-choice issue, but an issue of pro or anti-democracy.

Noah Cole [00:02:24] It sounds like you've covered a lot of ground, Amy. The Texas abortion bill, vigilante justice and building a multiracial democracy.

Amy Benziger [00:02:32] Yeah, I thought I'd pick a light topic to kick off the new season.

Noah Cole [00:02:35] Let's get to it then.

Amy Benziger [00:02:37] Today, we're talking your neighbor, the bounty hunter.

John Michaels [00:02:48] Hi, my name is John Michaels. I teach public law classes at UCLA School of Law.

David Noll [00:02:53] Hi, I'm David. No. I'm a professor of law at Rutgers Law School in Newark, New Jersey.

Amy Benziger [00:02:58] Thank you both so much for being here. In your piece, you use the term right suppressing laws. You talk to these new wave of laws as no longer looking at protecting personal rights and more as protecting our right to be offended. You call them part of a campaign to make us forget what rights really are. Can you talk to how, from a legal standpoint, this can be happening?

David Noll [00:03:16] The precedent that the law's defenders point to most commonly is federal environmental legislation. If you look at the Clean Water Act or the Clean Air Act, those laws are passed in the 1970s. The claim is that first I will be injured by the construction of a factory or the pollution of a river. But notice also that the suits are serving as a check on governmental enforcement. And so folks who have put together the rights suppressing laws point to those as a precedent. So using those as a model, they say, Aha, right? I don't like abortion. I don't like critical race theory. I don't like a trans kids using a bathroom that matches their gender identity. I can copy the technology from these older laws where injured parties actually are the ones bringing suit to enforce their rights. As if anybody performs an abortion in Texas, any person may bring suit against that person. But notice you've completely disconnected the connection between suffering an actual violation of your rights and your ability to go into court and bring suit. And it's for that reason that we and others have described this as bounty hunter regimes as vigilante regimes in a very literal way. They are encouraging a posse to make use of the civil justice system and come into court and enforce these laws.

Amy Benziger [00:04:41] Exactly. And it is anonymous is the idea of an enforcer, so everyone is scared to put their neck out there to protect each other because you never know who's going to be offended or look at it as an opportunity to make money. When I first read about the lives, scary to think that my mind immediately went back to the Fugitive Slave Act, which is one of the most shameful laws in America's history

David Noll [00:04:59] for folks who aren't familiar with it, the Fugitive Slave Act is enacted as part of the compromise of 1850. So the way that the law worked is it created special judges who are known as commissioners. The commissioners got dollars. If they found an alleged fugitive and ordered the fugitives return, they got five dollars if they found that the proof was insufficient. There was a thousand dollar fine for people who aided and abetted in section five of the statute, it says. All good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law whenever their services may be required. Just a completely striking parallel with the language of SB eight that says any person may drag an abortion provider or anybody who aids in assists or attends to aid and assist an abortion provider to court.

Amy Benziger [00:06:07] And that number a thousand dollars was essentially what enforce the law, because for so many of those folks who wanted to help escape slaves, that type of money at that time was so financially catastrophic that it would be impossible to act for almost anyone. And that makes me think you just can't stifle people's beliefs in a supposedly democratic system for very long before it erupts.

David Noll [00:06:32] The Fugitive Slave Act did not resolve the question of slavery. It was an incredibly contentious piece of our politics in the 1850s. It's part of the sequence of legal enactments that lead up to the Civil War. We don't want to overstate what these laws are doing, but at the same time, we want to be very clear that there is a historical analog for these laws and it doesn't lead to pleasant places. And so you should absolutely reject the idea that these are simply a conservative version of the Clean Air Act, or they're completely different and they threaten civil society in a way that established private enforcement statutes don't do at all.

Amy Benziger [00:07:17] I think there's been a universal humbling among many Americans and the understanding that history does repeat itself. Many of us have had the luxury of thinking this was impossible. But after January six, I think our belief in the stability of a never ending democracy in America started to feel really shaky. What do you point to is the roots of this instability in our lifetime?

John Michaels [00:07:38] There is a universe of vigilantism that, as we've seen, it has been on the rise for some period of time. We market roughly from the early part of this new century, where it became most apparent in the private policing of the southern border under the belief that the federal government is not doing enough to protect the homeland as it were. And we've seen over those periods of time armed patrols and. And the second area is the mobilization of every American to fight the war on terror at home. And so there's been this rise of policing, one of the neighbors policing those who seem like they don't perfectly quote unquote fit into our community. And this isn't the same story. This teacher is not doing what we expect the teacher to do, or these kids should use the bathrooms in which their gender birth directed them to do so. It's all about kind of enforcing conformity, but not even having the state do it. But to have individuals do it creates a situation where it's not big government doing it. It's almost like a grassroots movement, and this makes it look like these are just legal issues. And should this be in state court or should it be in federal court? And David, in our lifetimes, like, whoa, slow down. Let's not lose sight of the fact we're mobilizing some group of individuals against another group of individuals.

Amy Benziger [00:09:11] For many, the last five years have felt like a breaking open of an ideological divide in the United States over the basic human right to freedom, to live the way you want to have the same opportunities as your fellow citizens and to have control over your own body. What is set the stage for these rights pressing laws to take hold is a federal judiciary fundamentally reshaped by Donald Trump. In many ways, Trump convinced a lot of single issue voters who may not have liked him for many reasons to vote for him for a single one. The U.S. Supreme Court, the three Supreme Court justices he appointed Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all under the age of 55, with the lifetime appointments and the power to control the court for decades. Throughout his term, he also appointed over 200 judges, fundamentally shifting the courts across the United States to the right. Let's talk about the role of the courts in 2021. It felt like when the Supreme Court declined to rule on SB eight, there was massive outrage, but it was also such a blatant Partizan play. It felt like we all sort of gave up on the court.

John Michaels [00:10:12] Just to be clear, Congress could pass a federal law that protects the right to abortion, and it's not that hard in the same way that Congress could do something to further protect voting rights. I mean, it might be hard to enforce, but it's not that hard to legislate if they if they are of the mind to do so. So I do think keeping attention, not assuming as I think progressives or liberals of earlier generations assume that the courts would bail us out. And I think people recognize that that's not true anymore. And so it puts more pressure on the political branches to do what's right. Quite frankly, it's a real it's a gut check moment for the Democratic Party.

David Noll [00:10:50] I would push back on the framing of your question because giving up on the Supreme Court suggests the image of a heroic Supreme Court that is willing to go to bat for the little guy and correct defects in the political process. Time and again, the court has acted in ways that privilege the rich and that undermine equality and that undermine the functioning of a fair democratic process. I would say certainly don't look to the Supreme Court to save us here, but also revel in that because as scary as things are. It is a moment to participate in democratic politics. And, you know, in this deeply ironic way, the best response to anti-democratic politics is more democratic. Politics is democratic engagement.

Amy Benziger [00:11:42] What about individuals? Where do we go from here?

John Michaels [00:11:45] Maybe this idea that individuals are policing one another could be a new political front to essentially take stock of who we are and who we want to be. That may be too optimistic, but this seems like a rallying cry.

David Noll [00:12:01] Historically, there's been sort of a tendency to splinter into interest groups, right? So that you have the environmental movement and you have anti-discrimination movement and different interest groups within democratic politics. And what we're seeing is that all of that stuff is connected, and the demands of these different interest groups are not attainable without good democracy, without fair electoral rules, without fair elections. It's extremely hard to predict how it's all going to unfold, but we do think that in a more democratic society, you would have less space because there's just not broad, popular support for turning neighbors on neighbors and undermining the principles that are that are recognized in ROE.

Amy Benziger [00:12:44] So we're trying something new at the end of every show. We're asking all of our guests for a prediction one year from now, what's changed with this issue?

John Michaels [00:12:51] I would say one year from now, we will see more copycat state legislation on a broader range of issues. It'll be increasingly dividing the world between blue and red.

David Noll [00:13:02] A year from now, the Justice Department has filed a lawsuit that has a high likelihood of resulting in SB eight, not the entire category of laws, but but SB8 being struck down. Congress, for all its flaws, is working on historic legislation, part of which is voting rights legislation. A year from now, we will be in in the midterm campaign if the stakes weren't clear. Surrounding reproductive justice prior to the enactment of SB eight, the fact that Texas has effectively shuttered every abortion provider in the state with threats of massive civil liability directed against abortion providers and people who aid and assist them, makes clear the stakes just in a tangible way that no law professor could ever do because this is affecting people on the ground and it is having direct impacts on how they live their lives.

Amy Benziger [00:14:03] Few movements for equality have happened without the solidarity of multiracial multi issue and multiparty groups across society. John and David made that clear. Noah, I'm curious to hear your thoughts.

Amy Benziger [00:14:14] So what stood out to me, Amy, is that we started off with an interest in the Texas abortion law, right? But eventually we ended up with our need to improve democratic systems in the U.S. overall. Initially, I thought that fighting against abortion laws would involve striking the laws down through Congress or the Supreme Court. But according to John and David, we should focus on being proactive about passing pro-democracy reforms alongside striking down the laws. That way, these bills could never be passed in the first place.

Amy Benziger [00:14:44] So a year from now, what's your prediction, Noah?

Amy Benziger [00:14:47] I'm going to go ahead and cosign John's prediction. I think we'll see more copycat laws passed around the country a year from now. Since we're heading to the midterms, I think red state politicians will be looking to rally up their base with divisive social issues like these. What about you, Amy? Where are we at a year from now?

Amy Benziger [00:15:03] I think a year from now we see record breaking participation in women running, canvasing and voting for pro-choice candidates. You know, the day after Trump was inaugurated, I marched on Washington with hundreds of thousands of women, and what we later found out was the largest single protest in U.S. history. Right now, we have a heartbeat bill moving through the Florida Legislature that's going to be signed by Governor Ron DeSantis. If that happens, that's 50 million people in America across these two states alone without access to abortion services. You know, I think one state is scary. Two states are trend and people are going to rise up.

Miners Clip [00:15:36] Congratulations on two years. You are the founding members of lesbians and gays. Support the miners. Terrific. That's great. Oh, government by.

Amy Benziger [00:15:59] Talk policy to me is a co-production of UC Berkeley's Goldman School of Public Policy and the Berkeley Institute for Young Americans.

Amy Benziger [00:16:07] Our executive producers are Bora Lee Reed and Sarah Swanbeck.

Amy Benziger [00:16:11] Editing for this episode by Amy Benzinger, and Elena Neale-Sacks.

Amy Benziger [00:16:15] The music you heard today is Blue Dot Sessions and Pat Mesiti-Miller.

Noah Cole [00:16:19] I'm Noah Cole.

Amy Benziger [00:16:20] I'm Amy Beziger.

Amy Benziger [00:16:22] Catch you next time.