At the turn of the nineteenth century, English philosopher Jeremy Bentham proposed a design for a circular prison with the cells on the perimeter and a guard at the center. The guard could observe the prisoners, but the inmates because of blinds and other contrivances could not see the guard. Of course, the guard could only watch one a few prisoners at a time, but the inmates would not know when they were being observed. Bentham concluded that the risk of observation, as he put it, “a sort of invisible omnipresence,” would cause the prisoners to regulate their behavior to an appropriate standard, which primarily meant work.

In the 1970s, the French philosopher Michel Foucault seized what Bentham called a panopticon as a metaphor for social control using observation to promote docility and “appropriate” behavior. Without using the panopticon term, George Orwell in Nineteen Eighty-Four captured the power, and the terror, of the risk of being watched although his book had the surveillance via telescreens: “There was of course no way of knowing whether you were being watched. . . . You had to live in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” And watched or not, behavior was controlled by the potential of observation.

The Texas abortion law does something similar. Since anyone in the world may sue to enforce the law, anyone with any contact with an abortion provider will feel as if someone is observing the interaction and seeing an opportunity, whether justified or not, to sue for damages. Since every contact with an abortion provider leads to the possibility of legal liability, the way to avoid that risk is, of course, to cut off contacts with abortion clinics. The law thus will control behavior even without enforcement. And even if the law is overturned someday, the panopticon effect of the statute will affect reproductive rights and choices until then with consequences that will go on even longer.

The Fetal Heartbeat Act is unconstitutional because it forbids abortions that Roe v. Wade and other Supreme Court precedents allow. The law is Orwellian, however, because of its vigilante enforcement and because many people cannot know when or whether they are violating the statute. Conservatives, at least some Texas ones, seem comfortable with these frightening SB 8 procedures, and perhaps will try to extend them to other arenas. Non-conservatives should be thinking along the same paths. Might the Texas law provide a template for other initiatives that non-conservatives might favor?

Gun violence might be an appropriate target. After all, gun violence harms not just those who are wounded or killed but society generally by causing widespread fear affecting the behavior of many. Perhaps we could start out with a narrow proposal. A state might create a private, civil cause of action  gainst anyone who shoots another with an assault rifle unless the shooter shows that the victim was committing a dangerous crime endangering others at the time of the shooting. As with the Texas law, government entities and officials would be forbidden from enforcing the new cause of action, but anyone else could claim under it seeking a minimum of $10,000. In addition, similar damages could be sought from anyone who aided or abetted the shooter without any need to show that the aider or abettor knew or should have known that the shooter would violate this law. As with the abortion law, the extent of aiding or abetting liability would not be immediately clear, but it could extend to those who sold the gun or the ammunition to the shooter. It might reach the manufacturer of the weapon or ammunition, and I am sure that creative attorneys would think of others to sue. 

What other problems do you see that could be addressed with a statute similar to the Texas abortion law?

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s