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The Vagueness is the Point [1]

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Date: 2023-12-17  

A law professor at U. Pittsburgh, Greer Donley, who studies abortion law, posted this op-ed in the NYT this morning: What Happened to Kate Cox Is Tragic, and Completely Expected. In it, she makes this telling point:

The law does have a narrow exception allowing abortions in some medical emergencies, but it is written in such a vague and confusing way that it is difficult for even experts on this topic, like myself, to parse. [emphasis added]

That vagueness was deliberate. The confusion was deliberate. Texas abortion law’s wording is causing dangerous confusion over emergency medical exceptions, critics say:

Providers, courts and medical authorities have been unable to provide clarity on the exception – and some argue that’s by design. “The vagueness may not be a bug, but a feature,” said Suter. “Look at the numbers – abortions are not happening. If that’s your primary goal, then you want it to be an exception that looks good on paper but that actually chills the provision of abortions.”

According to Cornell’s Legal Information Institute, the Vagueness Doctrine is:

A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness. Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

And yet, AFAIK none of the deliberately vague anti-abortion laws passed, or revived, since Dobbs have been struck down (caveat: IANAL). Again, this is deliberate: If the law is so unclear on what abortions are allowed, and so threatening if you guess wrong, you are not going to perform that abortion.

But this methodology goes far beyond beyond abortion. It is just one instance of how authoritarians use vagueness to control the populace. It allows, even demands, arbitrary decisions such as the one the Texas Supreme Court (which has no medical expertise, any more than AG Paxton does) to override expert medical opinion when it suits them.

You, the average citizen, can no longer be certain what behavior is acceptable and what will get you in trouble with the law. Can you say the Civil War was about slavery? Maybe not. We can no longer be sure that an honest evaluation of our history will not get us in trouble. Can you read books that reveal the complexities of human sexuality? How long before Squeaker™ Mike Johnson’s belief in a young earth creation become law, with challenges punishable as crimes?

Here is Professor Donley again:

The Dobbs decision greenlit a patchwork of abortion bans that are inherently standardless and functionally unworkable, forcing judges with no medical background into the business of making medical judgments. The boundaries between fatal and nonfatal, therapeutic and elective, and even abortion and miscarriage are blurry for medical professionals; they are virtually impossible to decipher for the lawyers and judges who have to navigate them.

Paradoxically, vagueness in law is being used to enforce a black-and-white view of the world. Abortion is always wrong. People are always male or female. The Bible is always true. These positions are in contradiction with reality, which is why their proponents need vague laws; their very vagueness allows them to use them to get whatever result they have arbitrarily decided they want.

Vagueness and arbitrariness are basic tools of authoritarian governments. The vagueness is the point.

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