Texas bounty hunt abortion law could be on the books for a long time
WHEN The Texas legislature passed a law trying to ban abortion after about six weeks of pregnancy, many Supreme Court observers expected to be suspended because it contradicted the right to abortion, says in Deer vs. Wade, which the court has recognized for nearly 50 years. Instead, the Supreme Court, in a 5-4 vote, refused to do so on procedural grounds. The law is in effect, which is obviously bad for women in Texas. But it’s also bad for the court itself and for the rule of law because, by their inaction, the majority justices allowed the US legal system to be hacked.
Enjoy more audio and podcasts on ios Where Android.
Texas law is ingeniously horrible. Its new enforcement mechanism was devised by a former clerk of the late Antonin Scalia, a judge who died in 2016, to escape court scrutiny. Challenges to the constitutionality of a state law usually require someone to bring an action against state officials. Texas law makes this difficult, explicitly preventing Texas officials from enforcing it. Instead, anyone based anywhere in the country can sue a Texan who assists in providing an abortion after about six weeks, from the taxi driver or the relative who drove a woman to a clinic to receptionists. or the nurses who work there. To encourage them to do so, successful plaintiffs will have their legal fees paid and receive a reward of $ 10,000, imposed as a fine against the target of the lawsuit. Thus, abortion is prohibited without a single Texas Ranger getting involved.
The law does not allow complainants to prosecute women who have abortions, perhaps because directly targeting pregnant women is unpopular. But the effect is the same. While no one has yet used the law to sue and claim their reward, the fear of being sued means that abortion clinics in Texas have turned women down. One likely consequence is that more women will end up seeking more traumatic abortions later in other states. Abortion pills, mailed in, could in theory offer a way around the law. But Texas is one of 19 states that require a doctor’s presence when these medications, which can be safely taken at home, are ingested. And any doctor who encouraged an abortion in this way could now be prosecuted.
One of the principles of good legislation is that the rules should be both simple and enforceable. It’s neither. Conservative lawyers favored tort reform to make America less litigious. This principle is also superfluous. As John Roberts, the chief justice, said in his dissent, it would have been better if the court temporarily blocked the Texas law because it is so unusual.
The decision not to damage the Supreme Court. It’s hard to imagine the majority would have been so relaxed if Texas law had offered prizes to people suing gun shops and their employees after school shootings. The five majority judges are therefore exposed to charges of reasoned motivation, which is particularly troubling given that during its next term (which begins next month), the tribunal is expected to rule on a direct challenge to Roe deer —A 15-week abortion ban passed by the Mississippi state legislature.
It is still possible that the court will strike down the Texas law as unconstitutional. The easiest way would be for someone to successfully sue a lawsuit and then the target of that lawsuit to appeal. A lower court could take up the case and eventually go all the way to the Supreme Court. But it could take a year or more. The Justice Department plans to sue Texas, although it’s not clear that either will work. In the meantime, a law that takes away a fundamental choice of women will remain.
This is a bad result. A clear majority of Americans want abortion to be legal in the first trimester of pregnancy and illegal in the third, with exceptions when carrying the fetus to term would endanger a woman’s life. The country’s long-running wars against abortion cannot be solved by giving people $ 10,000 to sue a nurse.■
This article appeared in the Leaders section of the print edition under the headline “Trouble de la cour”