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Debs suggests that the federal government must have the power to assert its own interests in federal court, even when no federal law authorizes it to do so. “Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare,” the Court explained, “has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other.”

Though Debs conceded that the federal government may not file a lawsuit to “interfere in any mere matter of private controversy between individuals,” it permitted suits “whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes the duty to all the citizens of securing to them their common rights.”

The DOJ argues that these conditions are met because, if the DOJ cannot sue to block SB 8, there will be no one to secure “common rights” protected by the Constitution. “Just as the United States could sue in Debs to eliminate a grave threat to its sovereign interest in the free flow of interstate commerce,” the Justice Department argues in its brief to the justices, “it may sue here to eliminate S.B. 8’s grave threat to the supremacy of federal law and the traditional mechanisms of judicial review.”

Ordinarily, if a state law permitted private parties to sue abortion providers in state court, those providers could wait to be sued, and then argue that the law permitting them to be sued is unconstitutional during that state court proceeding. But SB 8 is designed to frustrate this normal process as well. For one thing, it contains a simply extraordinary provision stating that SB 8 defendants may not assert their “belief that the requirements of this subchapter are unconstitutional or were unconstitutional” as a defense in state court.

Even setting aside that provision, the mere threat of SB 8 lawsuits is enough to prevent abortion clinics from violating this unconstitutional law. Because the law allows literally any person who is not employed by the state of Texas to file such a suit, an abortion provider (or even someone who is falsely suspected of being an abortion provider), could be inundated with thousands of lawsuits, brought by plaintiffs from across the globe, and filed in any number of Texas state courts.

To defend against so many suits, a provider would likely need to hire a small army of lawyers — all at considerable expense. And if they lost just one suit, SB 8 permits the prevailing plaintiff to collect a bounty of “not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter.” There is no upper limit to this bounty, so a judge could conceivably force a provider to pay millions of dollars for a single violation.

SB 8, in other words, effectively punishes people suspected of performing abortions (or anyone who “aids or abets” an abortion) by subjecting them to potentially crippling legal fees before any court has even determined that they violated the law. And the law also prohibits defendants from recouping their attorney’s fees. The mere fact that someone impoverished by legal bills might eventually be able to argue in state court that SB 8 is unconstitutional offers no real relief.

So the DOJ makes an entirely plausible argument that permitting it to sue Texas is essential to vindicate the supremacy of the federal Constitution — a Constitution that, at least for now, is understood by binding Supreme Court precedent to protect abortion rights. But there’s no reason to think that the DOJ’s argument will convince the five justices who joined the majority in Whole Woman’s Health.

These justices already endorsed a regime where the right to an abortion goes unprotected within Texas’s borders. Why would they reverse course now?

A possible middle ground

Although this Court is unlikely to protect abortion rights, there are still potent reasons why even anti-abortion justices should oppose SB 8. For one thing, if Texas can offer bounties to anti-abortion plaintiffs — and evade judicial review in the process — other, bluer states could pass copycat laws. Do the justices really want New York to pass a law permitting “any person” to collect a bounty from gun owners?

Similarly, as explained above, SB 8 potentially imposes extraordinarily expensive legal fees on people who are suspected of performing an abortion, even if they didn’t actually perform an abortion.

Suppose, for example, that a false rumor circulates on Twitter that Dr. Jane Smith performed an abortion in Austin, Texas, when, in fact, Dr. Smith has never performed an abortion in her life. Under SB 8, Dr. Smith could be bombarded with hundreds or even thousands of lawsuits — enough that the legal costs of defending against these suits would bankrupt her.

I don’t have any illusions that this Supreme Court will hold that doctors who perform abortions cannot be punished. But I’d hope that we could all agree that doctors who are falsely accused of violating a state law should not be punished. If due process means anything, it should mean that Dr. Smith should get her day in court before she is forced into bankruptcy.

On Twitter, University of Texas law professor Steve Vladeck proposed a possible solution to this problem. If the Court isn’t willing to block SB 8, it should at least decide whether to strike down SB 8 at the same time that it is considering Dobbs.

Now that the Fifth Circuit has (again) showed its hand, #SCOTUS should treat DOJ’s forthcoming application to vacate the stay in US v. Texas as a petition for cert before judgment, grant it and the providers’ pending petition, and have them argued alongside Dobbs in December.

— Steve Vladeck (@steve_vladeck) October 15, 2021

Vladeck’s approach would allow the Court to excise SB 8 even if it also nullifies the constitutional right to an abortion at the same time — and the Court handed down a brief order on Monday suggesting that it may be inclined to do as Vladeck suggests. That way, there won’t be copycat laws targeting other constitutional rights. And there won’t be waves of lawsuits based solely on things like online rumors.

I remember one time I went to clean a person’s house who was the same age as me. They had a really nice place and a couple of kids, and their kids’ bedrooms were just immaculate and like something that I wished for my own kid. And as she was walking me through, she pointed to a couple of spots that I had missed on a light switch. She said, “Can you just make sure that you get this next time?”

I just remember thinking, “Really? You’re going to point that out to me?”

It was just so demeaning. I mean, every single time that I had to get on my hands and knees to scrub something and the client was home, it was just a really horrible feeling. There were times that I would be cleaning, and the client was home and they answered the phone and they said, “Oh I can’t talk, the maid is here.” It was a really odd feeling.

I wish that type of work held the same amount of dignity that [my clients’] work did. I’m not really sure why it doesn’t. Because domestic work is the work that makes all the other work in this country happen.

In 2015, you published a piece on cleaning houses for Vox. Then in 2019, you published the book. And now it’s a Netflix series. Can you walk me through what happened to get you from one to the other?

The Vox essay was my first big paycheck as a freelance writer. It was something that I had worked on in college and beyond. I saw a call for pitches through another publication, I think it was Literary Mama. They put out an email that said these people are looking for personal essays.

So I emailed Vox and entitled it “Dear Editor,” and sent them a couple of paragraphs that I thought were really good. And they emailed back immediately and offered me $500. That was like the most money I’d ever seen. I was just falling all over myself.

The morning that it was published online, my friend actually called me on my flip phone and said, “Are you okay?”

And I said, “Yeah, why?”

And she said, “You need to go look at your computer.”

That essay went so viral. I really wasn’t set up for that amount of virality. I started getting hundreds and hundreds of emails through the contact form on my website, and they were all so angry.

I was called dumb. God, what did they call me? They called me a roach. They called me a bum. A leech on society. I was called dirty a lot.

That essay was edited to make me a very unlikable character. At the time I was just like, “Fine, whatever. Just pay me my money!” But now that I have some experience, I definitely would have pushed back on some of those edits. [The editor of Land’s essay is no longer employed at Vox.]

I received hate mail for so long and at such magnitude that I remember going out for a walk in the woods with a friend of mine and feeling so exposed and raw. It just really affected me.

But on the other hand, an agent from New York reached out to me that morning and asked me if I had a book in the works and I lied and said yes. I wrote up a couple of chapters and a book proposal, and we had a book deal 11 months later.

After that, every time I pitched an editor and included a link to that essay, they said, “Oh my goodness, you’re the woman behind the house-cleaning essay!” My freelancing career really took off after that.

I still get hate mail from that essay every once in a while.

Oh god, I’m so sorry you had to deal with that. So you get this book deal. And then how does that become a Netflix deal?

I have a wonderful agent at CAA, Michelle Crows, and she sent out advance copies of the book. So I ended up talking to different groups of producers and directors and people who were interested in this story.

John Wells and Margot Robbie were my last call. Up until that point, a lot of people really wanted to do a straight adaptation of the book. And to me, that sounded horrible. Because it’s such a white person story, and it’s such a privileged story. In memoir, you’re tied to your experience, and I was very isolated. I didn’t talk to anybody. I kept thinking about the movie trailer guy saying, “One white woman dipped into poverty — and how she got herself out.”

John Wells and Margot Robbie proposed fictionalizing it, and bringing in a really diverse cast, and making the story look like the real world does. I love that, and so that was why I went with them.

I’m glad you brought that up because I know you’ve written about how the ways we talk about poverty can feed into a lot of ideas about systemic racism. For instance, the way we talk about poor Black people as welfare queens, and all of the political baggage around the idea of the white working class. I don’t think this is necessarily present in the book, but you can see a way in which the idea of a white single mother is politically attractive to certain agendas in a way that it might not be if it were the story of a woman of color who is having to navigate this treacherous system. Is that disconnect something that you’ve seen in the reception of this story?

It’s something that I talk about every chance I get. I knew right off the bat that my story was very attractive to publishers because it was marketable. I am a very palatable and very likable poor person because I am white. I could look like your cousin or your neighbor for a lot of the population who purchases memoirs and reads these books.

Going into that, I had a moment of realizing that I was being lifted up. And what am I going to do with that? So even though I am a pretty shy introvert, I realized that they’re listening to me. And because they’re listening to me, then hopefully that will open up space for other people to share their stories.

We don’t listen to people of color. We especially don’t listen to people who are in systemic poverty or systemic racism, which go hand in hand. And we especially don’t listen to people who are still in that situation and who are angry.

One thing that I’ve seen on social media that honestly really encourages me is that people are angry, and they’re talking about their anger, for that thing that you’re talking about: It’s a white woman’s story who’s being lifted, when the majority of domestic workers are women of color. I’m grateful that they are able to talk about that anger. I want them to have space to talk about how angry they are about the systems that are in place that keep them in poverty.

I talk a lot about how the government assistance program is broken. But it is almost impossible if you’re a person of color in this country or you’re an immigrant.

What is the biggest thing that you hope people who read the book and watch the show take away from them?

I hope they gain some empathy for people who are in poverty, especially the people who are experiencing homelessness. I think we have this idea in our heads that it’s always the person who is sleeping on a sidewalk, when that’s really not the case. There are many, many families in this country who are sleeping in their vehicles and taking their kids to school and going to work. And it’s a real tragedy.

I hope that people start to realize that and have some compassion, and take that compassion with them when they go to the voting booth. And vote some people into office who have lived experience in the margins, or have empathy for those who do.

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