The Time for Democrats to Go Nuclear Was Yesterday
In the U.S., constitutional law guarantees pregnant people the right to have an abortion without “interference from the state.” Judicial precedent also empowers Americans to preempt any state law that flagrantly violates their constitutional rights: Even before an illicit statute takes effect, individuals can seek a court order barring state officers from enforcing it.
The pro-life movement abhors these legal niceties. In recent years, red states have routinely enacted de facto repeals of Roe v. Wade, only to see their unconstitutional laws nipped in the bud. Of course, conservatives did not respond to these setbacks by revising their agenda to better fit the demands of law and procedure. Rather, they used every tool at their disposal — including unprecedented violations of Senate convention — to assemble an anti-abortion Supreme Court majority. Meanwhile, in Texas, Republicans devised a cockamamie scheme for nullifying abortion rights immediately — with just a small favor from their friends on the high court.
The Texas GOP passed a law that effectively bans abortions after the sixth week of pregnancy — before many women even realize they are pregnant — but outsourced enforcement of this ban to private citizens. Under the law, known as SB 8, “any person, other than an officer or employee of a state or local governmental entity in this state,” can sue anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” after the sixth week of pregnancy. In other words, any doctor, clinic staff member, nonprofit, or even taxi driver who consciously helps someone end their pregnancy could be legally liable. The law entitles plaintiffs who win such suits to at least $10,000 from the defendant.
This is an unusual way to enforce a law. It turns every private citizen in the state of Texas into a potential hybrid of spy and bounty hunter. It threatens to besiege the state’s court system with lawsuits. But it also offers the judiciary a pretext for sitting on its hands as a blatantly unconstitutional law is implemented. Precedent empowers individuals to block the enforcement of unconstitutional laws by suing the state officer tasked with enforcing those measures. In the case of SB 8, however, no such state officer exists. So there is none to sue.
Read more: https://nymag.com/intelligencer/2021/09/sb8-texas-abortion-democrats-filibuster-manchin-voting-rights.html
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