Texas Grants Anyone on the Street the Power to Block Abortions, and the Supreme Court Ducks the Matter Altogether
So, the new aggressive and restrictive Texas abortion law, one that encourages vigilantism to stop abortions, kicked in on Sept. 1 with no one at the Supreme Court deciding to enforce current federal law.
The Texas law, which makes abortions illegal six weeks after conception (how would anyone know?), actually offers any private citizen a $10,000 bounty for catching and successfully suing someone aiding or abetting abortion.
As I get it, this law pushes the boundaries of anti-abortion activism substantially, not only effectively eliminating abortion in the state, but encouraging neighbors to rat on one another. As such, if the court does nothing to enforce current law, we should expect that Republican-majority state legislators will take, er, only a heartbeat to spread it nationwide.
Choice groups had filed an emergency appeal with the Supreme Court to stop the law from taking effect after losing court challenges at the federal district court and then the U.S. Court of Appeals for the 5th Circuit levels. This conservative-dominated Supreme Court, which upholds stays all the time on controversial matters to allow for a hearing, at least, just let this one become law. Yet the court could still act.
There’s certainly nothing political in this, if you listen to its proponents; it’s just a matter of who has the legal right to challenge the law in court.
The practical effect is to require that women who want an abortion will have to travel to a state that recognizes federal law on abortion. According to the Guttmacher Institute, the one-way driving distance for a Texan seeking an abortion would increase from 12 miles to 248 miles, 20 times the distance, in the middle of a pandemic. Naturally, it will disproportionately affect women of color.
The irony over Americans weeping about the fate of Afghan women as Republican states move to throttle choice for American women is too close to ignore.
Challenges Aplenty
Abortion law fights abound. There are challenges to new anti-abortion efforts in Arizona, where doctors face new felony crimes for providing abortion care when it seems a patient’s decision might be based on a fetal genetic condition, and in Arkansas, Guam, Alabama, Georgia, Kentucky, Missouri, Ohio, and Tennessee.
A dozen states have attempted to impose bans that begin at six weeks — at which point many women do not know they are pregnant — before courts stopped them.
Even as conservatives demand choice to halt infectious Covid-19 mutations through vaccines and mask mandates, the very same people are against personal choice in abortion treatments. Whether based fully on perceived religious, moral or political grounds, the anti-abortion movement is out for legislation that would undermine the currently standing Roe v. Wade ruling that basically governs the legalization of abortion through a variety of restrictions on time, circumstance or medical requirements.
The basics of anti-abortion laws now are some version of personhood requirements that by state law would classify fetuses, embryos and fertilized eggs as people starting at the point of conception.
The Supreme Court is expected to rule this fall on the Mississippi law barring abortion at 15 weeks, but which is based on arguments that the court should finally overrule Roe outright and hold that there is no constitutional right to abortion at all.
From a legal perspective in the Texas case, the state argued that the court could not halt the law unless there was a citizen challenge first—a concept which seems legally dubious—and that the court could not halt the law itself, just its enforcement, an argument that directly opposes precedent.
‘Uniquely Dangerous’
The Washington Post editorial board recently noted that even among all the various state challenges to abortion, the Texas law is “uniquely dangerous” – not only to abortion but to the enforcement of laws.
An editorial noted that judges have struck down every law state legislatures have passed limiting abortion to the first six weeks of pregnancy, declaring these restrictions, which stop just short of totally banning abortion, to be unconstitutional.
Knowing this, Texas Republicans devised “a convoluted and dangerous workaround: a ‘heartbeat’ bill that entirely outsources its enforcement to private citizens. It’s a call to arms for antiabortion zealots — or, really, anyone who’d like $10,000, the minimum bounty for those who successfully sue a clinic or individual for enabling an ‘illegal’ abortion.”
“What makes S.B. 8 uniquely dangerous is that it empowers virtually anyone to sue not only abortion providers, but anyone ‘abetting’ an abortion in Texas. An Uber driver who drops off a woman at an abortion clinic or a doctor who provides medical counsel to a pregnant patient is potentially fair game. The law stacks the process in favor of people who sue,” noted the editorial.
Successful plaintiffs receive a bounty of at least $10,000, to be paid by the target of the suit, and recoup their legal fees. Also, a successful claimant can obtain a court order to stop an abortion or order the health center to close. Clinics or individuals who successfully fend off a suit get nothing.
In other words, the Texas law tried to avoid court scrutiny by explicitly banning government enforcement. Instead, the bill relies on any person not employed by the government to bring abortion cases to court. “That raises the question: Whom do the law’s opponents sue to stop it? Antiabortion advocates hope answering this is so complex that it hobbles the legal process — and they admit as much.”
Let’s remember that until otherwise, abortion remains constitutional in the United States. And we have governmental institutions to enforce laws. Why a Republican legislative majority in Texas finds it convenient to forget this is an outwardly political and divisive move.
Someone should report our Supreme Court justices as missing in action.
