Circumventing the Constitution – Unintended Consequences

 

The focus of Supreme Court consternation at the new Texas abortion law, one that for all practical purposes bans abortions in that that state, is the use of non-governmental private citizens, vigilantes, being given the statutory power to use the civil courts in private actions against “violators.” The law’s minimum damage award in the empowered civil actions is $10,000. Somehow, Texas seems to have convinced the highest court in the land to leave that law in place pending appeal because the 14th Amendment (equal protection) applies to the actions of governmental entities abridging constitutional rights, not private citizens. The law passed in a heavily gerrymandered Republican state by a legislature with an overwhelming majority of older men.

Pretty much taking control over one of the most personal decisions a woman can ever make regarding her own body, the law, “one of numerous restrictive Republican-backed state abortion laws passed in recent years, bans the procedure after about six weeks of pregnancy, a point when many women do not yet realize they are pregnant. There is an exception for a documented medical emergency but not for pregnancies resulting from rape or incest.” Lawrence Hurley and Andrew Chung for Reuters (October 31st).

Since there are no direct governmental civil or criminal prosecutions of this statute, Texas argues, the Constitution cannot proscribe that law. But here is the first of oh-so-many catches: a governmental entity – the Texas state legislature – passed this obvious attempt to circumvent the constitution – and allows governmental institutions (the courts) to enforce that virtual ban on abortions. Without the complete involvement of the state legislature, the governor who signed the law and the state courts to enforce this virtual ban, the right of a woman to control her own body would never have been abridged. The Court may reverse Roe vs Wade in several cases it is hearing, but it would have to struggle to pretend that the Texas government was not abridging previously sanctified constitutionally protected rights. On November 1st, the Supreme Court heard oral arguments on an emergency appeal against this Texas law by the Biden administration. They were expected to decide quickly, but there were ripplings in those arguments that that Court really might not want to rule yet.

There are so many other catches to this mockery of the constitution, not the least of which is the flood of Texas women seeking abortions in neighboring states, clogging already over-taxed hospitals. The travel plus medical cost to an abortion-seeker negatively impacts the most economically disadvantaged by a wide margin. 

However, the notion of being able to use private citizens, empowered by the government, to do indirectly what governmental entities are themselves constitutionally forbidden to do directly, has a very nasty blowback consequence that even some very right-wing groups have begun to notice. That right-wing support to hold that statute unconstitutional is particularly fascinating.

Reuters continues: “As abortion providers backed by President Joe Biden's administration prepare for Monday's [11/1] U.S. Supreme Court arguments in their challenge to a near-total ban on the procedure in Texas, they have found an unlikely ally: a right-leaning gun rights group. 

 “A ‘friend of the court’ [amicus] brief filed in the case by the Firearms Policy Coalition against Republican-governed Texas illustrates how the law's unique structure - enforcement by private individuals, not the state - has alarmed advocates for all kinds of constitutionally protected rights. 

 “Some conservatives are warning that similar laws could be crafted by liberals targeting issues important to the right… A law written like the one in Texas to impede courts from ruling on constitutionality before it takes effect could be used, for example, to take aim at constitutionally protected activities including gun rights, religious practice or free speech…

“At least three states already are considering legislation mirroring the Texas law's language including one in Illinois targeting gun dealers, said David Noll, a professor at Rutgers Law School in New Jersey who filed a brief opposing Texas. 

 “The Texas citizen-enforcement provision does not mean such laws can always evade judicial review. But to challenge them someone would have to be sued under the law first and then take aim at the enforcement mechanism in the defense. In the meantime, the fact that the law is on the books may chill the conduct at issue. That is the case in Texas, with abortion clinics complying with the ban since the Supreme Court let it go into effect on Sept. 1. 

 “Lawyers opposing the law have found potential analogies on other issues involving Supreme Court precedents. Laws that would enable people to sue gun owners and seek to prohibit unlimited independent spending in political campaigns are examples cited by Biden's administration in its challenge to the abortion law.” 

If the Court twists to find a way to support this rather blatant government attempt to sidestep constitutional adherence, you can bet that red states will track that Texas law, almost word for word in its generic application, and focus on every form of gun restriction, all forms of discrimination, excessive SuperPac campaign contributions, anyone attempting to interfere with that state’s law “freedom of choice laws,” or any those vaccine or mask mandates… to name just a few. Bring it on! But it was clear that whatever the Court might do now vis-à-vis the Texas statute, the decision would at best be procedural and would not directly reverse Roe vs Wade. Oral arguments in the case that directly challenges that abortion rights precedent, discussed below, would take place next month.

Ah, but the Court could choose a different path: simply refuse to decide now and allow the Texas statute to work its way through the federal judicial system from the bottom up. That choice would probably result in an almost immediate Federal District Court injunction against the Texas law, not stayed pending appeal, which would take a year or more to reach the Supreme Court. In the meantime, the Court would have ruled in Dobbs vs Jackson Women's Health Organization, the case challenging a Mississippi statute banning abortions after 15 weeks and addressing the Mississippi request to overturn Roe vs Wade. By that time, the Texas ruling would be moot, one way or the other.

I’m Peter Dekom, and if that’s what the Supreme Court believes is “good for the goose,” expect an avalanche of this form of “good for the gander” vigilante lawful enforcement against so many right-wing shibboleths… and if you think we are polarized now, imagine how this path would further fracture the nation.