The Texas Abortion Ban: Is it a Call to Action or a Foreboding of the Coming Ochlocracy

abortion rights

In understanding the coming horror that has been unleashed in Texas with the abortion ban the first question to ask is: what is an ochlocracy? When we understand that we will understand the implications of what is happening in Texas and what can or will happen in 49 other states. So we must define it and understand the psychology of it. Only a fool – and sadly there are many including six on the Supreme Court – who will not agree that this ban has no rational basis on which any claim could succeed. But we will get to that later.

“Ochlocracy, also known as mob rule, is the term used to describe a form of government. It operates on similar concepts to majoritarianism. Under this idea, control is gained by masses of people as a type of large crowd manipulation.”

“Ochlocracy is sometimes employed as a pejorative term for majoritarianism. Additionally, it is a term in civics that implies that there is no formal authority whatsoever, not even a commonly-accepted view of anarchism, and so disputes are raised, contended and closed by brute force – might makes right, but only in a very local and temporary way, as another mob or another mood might just as easily sway a decision. It is often associated with demagoguery and the rule of passion over reason.”

The mob in this case is the Republican party in Texas. And anti-abortionists who have waited for this moment since Roe v Wade became the law of land on January 22, 1973. And the six conservative justices on the Supreme Court. 

“However, it should be noted that the phrase ‘tyranny of the majority’ is a phrase more often associated with John Stewart Mill’s “On Liberty”. Mill sees the tyranny of the majority as a situation in which the majority is trying to stimie the rights of minorities. For example, the reason we have the Bill of Rights in the United States is to protect an individual’s rights from the tyranny of the majority group which would otherwise deny the minority.”

“Crowd psychology is the main concept that comes into play with ochlocracy. This is a form of social psychology that depends on a large group joining and acting together. History is peppered with instances where mob rule has dictated decisions the government or its ruling agents have made. Examples include the public hangings of the suspected Salem witches and lynchings of one type of people by an opposing group.”

Now here is where it gets, not tricky, but chilling. You can be part of the crowd. How, you ask? Hopefully, not you, my reader! Hopefully you will be called to action against this ludicracy but now let’s dive in and see what this despotic ban is about. 

“Well, it happened. The Supreme Court effectively overturned Roe v. Wade for folks in Texas under cover of darkness. That’s right—the biggest abortion rights news in 50 years happened in the shadows.”

“Instead of issuing a ruling blocking the Texas six-week abortion ban from taking effect, the Court did nothing. But in this case, doing nothing is actually doing everything. Because by doing nothing, the justices said Roe is no longer good law.”

Texas SB 8 bans abortion at six weeks. That means it bans abortion well before a fetus is viable. Roe v. Wade says specifically states can’t do that. Doesn’t matter. Texas just did that.”

Now you might ask why the Supreme Court did not choose to hear arguments about this ban like any good non-partisan Supreme Court might do? Why did they simply sit back and let this sham of a ban take effect? 

When you read above that they did it in the shadows, they made the decision on what was coined the “shadow docket”. In lay terms the “shadow docket” might be described as a fast track decision making process when a case is presented to them. 

“The shadow docket was coined by University of Chicago law professor William Baude to refer to any Supreme Court action taken outside of the court’s traditional “merits docket,” which encompasses the usual process and proceedings. Unlike its merits docket, the justices often don’t explain their reasoning—or sometimes even reveal their votes.”

With a 6-3 conservative leaning on the Supreme Court thanks to Donald Trump and Mitch McMcConnell, when he blocked Merrick Garland when Obama was president, the “shadow docket” is more obvious than not. Why would the Supreme Court want to look at such a meritless ban? These conservative justices were picked to overturn Roe. 

“If the Court was interested in upholding abortion rights precedent, it would have issued an order that basically says, “Sorry Texas, Roe says you can’t ban abortion at six weeks. Nice try.” The Court didn’t issue that order.”

“And by not issuing that order, the Court signaled that the 6-3 conservative majority has no interest in upholding Roe as precedent. And it did so on the shadow docket.”

We now have a radical abortion ban on the Texas books that puts a bounty on the head of anyone that may want to help a pregnant woman. They have turned the clock back to the 1800s and images of wanted posters and bounty hunters cross my mind. But it’s Texas so perhaps the apple hasn’t fallen far from the tree. 

“The law allows private citizens to sue abortion providers and anyone else who helps a woman obtain an abortion — including those who give a woman a ride to a clinic or provide financial assistance to obtain an abortion. Private citizens who bring these suits don’t need to show any connection to those they are suing.”

“Anyone who successfully sues an abortion provider under this law could be awarded at least $10,000. And to prepare for that, Texas Right to Life has set up what it calls a “whistleblower” website where people can submit anonymous tips about anyone they believe to be violating the law.”

“These lawsuits are not against the women,” says John Seago with Texas Right to Life. “The lawsuits would be against the individuals making money off of the abortion, the abortion industry itself. So this is not spy on your neighbor and see if they’re having an abortion.”

“In a federal lawsuit challenging this, a coalition of abortion providers and reproductive rights groups said the law “places a bounty on people who provide or aid abortions, inviting random strangers to sue them.”

The ban is not criminalizing abortion in criminal court. The pregnant woman is not being sued or arrested. Although her rapist should be. By the way, “this law makes no exceptions for cases involving rape or incest”. It’s everyone else around her who so much as speaks to her about her ending her pregnancy.  How would the court determine “aids and abets”? 

“Texas’ abortion ban differs from those promoted by other states in that it takes the pressure of enforcement off government, by allowing anyone in the US to sue an abortion provider or anyone who “aids and abets” someone seeking a termination. Victorious litigiants are eligible for a $10,000 (£7,300) damages payout in civil court.”

“Aiding and abetting could include driving a patient to an appointment, helping pay for the abortion procedure or providing information on how to access it. Removing government from the process makes legal challenges to the law more difficult.”

These are frivolous law civil suits that will clog up court dockets by a mob mentality. And Texas is just the beginning. This is a cancer that will spread and defy the very nature of the spirit of the Constitution and jurisprudence. 

“Senate Bill 8, which allows anyone to sue anyone who performs or aids in an abortion, marks an unprecedented change to who has standing to bring a lawsuit. The tactic is also an emerging trend in Republican-dominated states that may compromise constitutional rights, some legal experts said.”

“Republican lawmakers’ move to ban nearly all abortions in Texas was accomplished through a huge, unprecedented expansion of who can bring a lawsuit against someone else: Under the law, anyone can sue anyone who performs, aids or intends to aid in an abortion — regardless of whether they have a personal stake in the abortion performed.”

“It’s wide open,” said David Coal​​e, an appellate lawyer in Texas. “That is a radical expansion of the concept of standing.”

“The expansion has far-reaching legal implications, legal experts say, by challenging the very notion of what a court is for and emboldening civilians to enforce law, a duty traditionally left to the government. It’s also a reversal by Texas Republicans on tort law, in which they have typically sought to limit the ability to sue, not expand it.”

Jon Michaels, a professor at UCLA Law used the expression “compromising democracy” in an article in relation to “an emerging trend in Republican-dominated governments that find it difficult to constitutionally prohibit cultural grievances. Instead, they empower civilians to sue for civil remedies.”

“Jon Michaels, a professor at UCLA Law, points to Tennessee, where students, teachers and employees of public schools can sue schools if they share a bathroom with a transgender person, as well as Florida, where student athletes can sue their school if it allows a transgender athlete to play.

“It’s a way of back-dooring and winking while constitutional violations are occurring,” Michaels said. “It is compromising democracy.””

It is this trend I fear is the coming modern day ochlocracy: government by a mob, putting a bounty on the head of anyone who dares help the pregnant woman. 

“In 1837, Abraham Lincoln wrote about lynching and “the increasing disregard for law which pervades the country–the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice.””

And the mob started with the Donald Trump bullying mentality or perhaps before: he simply popped the 21st century pimple. The Republican party and the conservative justices are disregarding the rule of law and condoning the bully mob mindset.

“Texas’ abortion law goes much further. Typically, in tort law, which is used to compensate people who have been injured, a person must have incurred some sort of personal harm in order to sue someone else. That’s the very nature of what a civil court is intended to remedy in such a case, several legal experts told the Tribune. Texas’ new abortion law, however, gives that privilege to anyone.”

“Texas’s newly imposed antiabortion law combines the viciousness of flat-out abortion bans and the MAGA crowd’s penchant for bullying and harassment.”

“Chief Justice John G. Roberts Jr. and the court’s three liberals issued scathing dissents. Roberts argued, “The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.””

“In a separate dissent, Justice Stephen G. Breyer noted the majority’s double standard. “We have permitted those whom a law threatens with constitutional harm to bring pre-enforcement challenges to the law where the harm is less serious and the threat of enforcement less certain than the harm (and the threat) here.” Breyer further observed, “The very bringing into effect of Texas’s law may well threaten the applicants with imminent and serious harm.””

“Justice Sonia Sotomayor’s dissent shredded the court’s majority and the Texas lawmakers. As to the law that aimed to evade judicial scrutiny while rolling back decades of precedent, she wrote: “Taken together, the Act is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.” She concluded:

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry. … Instead, the Court has rewarded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation.

The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law”

“With the refusal to offer relief, the Supreme Court effectively authorized a grotesque abrogation of long-standing precedent and put the lives and health of Texas women at risk. Worse, legal experts point out no one is fooled as the court’s majority hides behind technical jurisdictional doctrines, allowing it to bypass a ruling on the merits. The law is designed to intimidate women by creating an ominous civil right of action cannot be challenged because no one has yet sued. The reasoning is as circular as it is dismissive of the plight of women denied exercise of their constitutional rights.”

To review and repeat anyone who is successful in their civil lawsuit can be awarded $10,000 for being a whistleblower for anyone who “aids and abets” someone seeking an abortion.  

“The law allows private citizens to sue abortion providers and anyone else who helps a woman obtain an abortion — including those who give a woman a ride to a clinic or provide financial assistance to obtain an abortion. Private citizens who bring these suits don’t need to show any connection to those they are suing.

And therein again is what puts the icing on the cake when it comes to this ban as the beginning of  the “United States of Ochlocracy”. 

“Classical theories of ochlocracy suggest that the individual minds of people form a united way of thinking, but that the crowd forms the people instead of the people forming the crowds. Each member of the group is fueled by the others, and they feed off the emotions of others, increasing their own. The result is a mob that acts completely as one with growing enthusiasm, and each individual loses touch with their original thoughts and intentions.”

Random strangers become united in their hunt for anyone who they think might afford them a $10,000 reward regardless of how they will destroy another stranger’s life and deprive a woman the right to decide what she does with her own body. 

If this is not “rule by mob”,  I don’t know what is. 

This is a call to action to stand up against this egregious abuse of power before it spills over into one more state. 

Author: Sherri Margolin (Dark Matters)

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