The Flawed Texas Heartbeat Bill
Recent Supreme Court decision and why pro-lifers should be skeptical of the new Texas law
Hey,
I haven’t written anything in a couple of weeks. Life is busy, especially this month. However, the unusual Texas law and the strange reactions on the right and the left have drawn me out of my writing slumber.
On May 19th, Greg Abbott signed Senate Bill 8, otherwise known as a “heartbeat bill,” which went into effect on Wednesday. The law bans abortions if a fetal heartbeat is detected, usually around week 6 of pregnancy. What’s different between this law and other “heartbeat bills” is the enforcement mechanism attached to it. Traditionally, state officials are charged with enforcing the law. However, this law is unique in that it allows private citizens (not state officials) to sue a person that performs an abortion for $10,000 per abortion.
In an attempt to block the law, abortion rights advocates asked the Supreme Court to block the law arguing that it directly violated the legal precedent set by Roe v. Wade. In a 5-4 decision, the Supreme Court refused to stop the Texas law. (You can read the decision here.)
However, it isn't that simple. The Supreme Court's ruling was not a decision on the constitutionality of the law; rather, it was a rejection on procedural grounds. Their decision states:
The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.
In layman's terms, the Court conceded that there are legitimate constitutional concerns; however, the plaintiffs failed to show how they have standing to challenge the law. That's where the part about state officials not enforcing the law comes into play. Because the state can’t sue any abortion providers, nor have any private citizens sued. The Court ruled that the plaintiffs didn't have standing because they haven't suffered any harm.
That’s the genius of the Texas law.
Usually, if a pro-life law is passed, abortion providers can sue whoever is charged with enforcing the law and secure an injunction against enforcement. But, since private citizens are tasked with enforcing the law, who will the abortion providers sue? All 29 million Texans? The law was explicitly designed to get around traditional abortion legal defenses that have stumped pro-life legislation in numerous states.
Right on cue, the Supreme Court’s somewhat limited decision was met with a firestorm of liberal hysterics that were light on facts and high on demagoguery.
The most ridiculous being Hillary Clinton’s willful ignorance of what the Supreme Court actually did.
No, the Supreme Court did not gut Roe v. Wade. The Court was very clear in their opinion when they wrote:
In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
The decision was purely procedural and nothing is stopping Texas courts in the future to strike down the law for violating Roe and Casey precedents.
The Law is a Mistake for Pro-Lifers
For my entire life, I have been unapologetically pro-life. I hope to see Roe overturned and states to take more steps to protect the unborn. Abortion is a great moral stain on the fabric of America and deserves to be thrown into the trashbin of history. That being said, this law makes me uncomfortable for one significant reason. It has created a legal precedent that will allow for the temporary deprivation of people’s constitutional rights.
What if Oregon passed a law that allows private citizens to sue any business or individual that sells any type of firearm? Conservatives would rightly be outraged. Ultimately, the courts would probably strike down the law as unconstitutional, but it may take weeks or months for the case to work its way through the judicial system.
Throughout the country, there will now be an ever-present temptation to draft these sketchy types of bounty laws that will turn neighbor against neighbor, family member against family member. In our current moment of entrenched polarization, this will surely make it much more volatile (and hurt Republicans in the midterms.)
With all things considered, and if you ignore the media yelling "bloody murder," the Texas case is merely a sideshow for the upcoming Supreme Court case Dobbs v. Jackson Women's Health Organization. The case will decide a challenge to Mississippi's ban on abortion after 15 weeks. Furthermore, Mississippi threw down the gauntlet. In its brief, Mississippi directly asked the Supreme Court to overrule Roe and Casey and the precedent that the Constitution provides a right to an abortion. As ill thought out as the Texas law is, all the focus will be on Dobbs, and Texas will be in the rearview after a couple of months.
What I’m Watching…
Since the 2020 election, many high-ranking Republican officials have carried water for former president Trump and his absurd claims of widespread election fraud. However, my view has mostly been that these Senators and party officials knew it was all hogwash, but the desire to kiss the king's ring and avoid populist backlash was too strong. Better to go with the flow and appease the base than make any principled stand for common sense. Unsurprisingly and somewhat hilariously, Senator Ron Johnson dropped the veil and admitted that the election was legitimate when he didn't know he was being recorded.