Nearly 120 Criminal Justice Leaders Urge Supreme Court to Block Extreme Texas Abortion Ban

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DAs, law enforcement leaders and former judges and DOJ officials stress the Texas law erodes the rule of law and will undermine trust and public safety

Special to the Vanguard

This week, a bipartisan group of 118 current and former elected prosecutors and law enforcement leaders, and former state attorneys general, federal and state court judges, U.S. Attorneys and Department of Justice officials filed an amicus brief urging the United States Supreme Court to halt Texas’ six-week abortion ban while the courts review its constitutionality. The group emphasized that this law – “perhaps the most blatant attempt to subvert federal authority since the Jim Crow era” – clearly disregards well-settled judicial precedent, erodes trust in the criminal legal system and rule of law, and undermines public safety.

The amicus brief was filed in support of the U.S. Department of Justice (DOJ)’s application to vacate the Fifth Circuit’s divided decision in United States of America v. State of Texas and reinstate the earlier comprehensive district court decision that barred enforcement of the Texas law while the DOJ claims work their way through the courts. The Texas statute in question, S.B. 8, bans abortions after six weeks, before many women even know they are pregnant, and empowers everyday citizens to enforce the law. The signatories say the law is “nakedly designed to override this Court’s existing precedents by deputizing private citizens as bounty hunters tasked with enforcing laws the State could not enforce itself, and then disclaiming responsibility before the courts.”

“For nearly five decades, the Supreme Court has maintained that abortion is a constitutionally protected right. Upending that judicial precedent and allowing states to disregard federal law would have dangerous consequences for trust in the rule of law and public safety,” said Miriam Krinsky, Executive Director of Fair and Just Prosecution, the organization that coordinated the brief. “Allowing Texas’ abortion ban to stand would not only increase the risk of unsafe and unsupervised procedures for millions of people, but it would also open the door for state legislatures to brazenly ignore federal law and infringe on numerous other constitutional rights. This is an unacceptable starting point for the elected prosecutors and criminal justice leaders who are entrusted with keeping communities safe and – whether or not one supports the right to abortion – this end run around the anchor of the rule of law should concern us all.”

Amici emphasize that trust in the criminal legal system, which is critical to promoting public safety, would be severely damaged by putting enforcement in the hands of average citizens who are not obligated to follow the same policies and ethics as actual law enforcement officials: “The justice system is intended to be a shield through which victims can obtain redress for harms, not a sword that arms unaffiliated private citizens to go after their neighbors for personal gain. S.B. 8 turns the justice system on its head, incentivizing these ‘deputized’ citizens to use overzealous, intrusive, and abusive measures…. These tactics create the potential for unchecked vigilantism and will necessarily undermine public safety.”

“Ignoring longstanding Supreme Court precedent and allowing subversion of federal law deeply erodes faith in the rule of law and the role of judicial review in our constitutional system,” said former Solicitor General Seth Waxman, a signatory on the brief.

Amici stress the urgency of the situation and the damage resulting from the refusal by the Fifth Circuit to maintain the status quo and hold this law and its unprecedented vigilante structure in abeyance as the case is being litigated, noting that S.B. 8 “cannot—and should not—be allowed to remain in place for a single day longer. The erosion of trust and damage it has created, and will continue to create, should be of great concern to all who value a system of laws and who seek to promote the well-being of our communities.”

“As an elected prosecutor, I am accountable to my community to seek justice and promote public safety, and I make difficult decisions every day about which cases to pursue. And as a former judge, I know well that the unprecedented legal concept of deputizing private citizens to make these critical decisions is a subversion of the role of law enforcement and a danger to community safety,” said Dallas County District Attorney John Creuzot, a signatory to the brief.

“As a law enforcement leader with decades of experience, I know what it takes to promote community safety and am deeply concerned by the precedent that would be set by allowing untrained citizens to enforce the law,” said signatory Darrel Stephens, former Police Chief of the Charlotte Mecklenburg,

N.C. Police Department and former Executive Director of the Major Cities Chiefs Association .

Amici are represented by a team of attorneys from Fair and Just Prosecution and the law firm of Weil, Gotshal & Manges LLP, including John Mastando, Lauren Bernstein, Melissa Rutman, Tania Matsuoka, Frank Ungerer and Lauren Wands.

Read the brief here.

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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