There are serious questions being raised recently by the anti-abortion law in Texas, about which the US Supreme Court heard arguments on a technicality last month. Specifically, whether the federal government may contest a state law that infringes on Constitutional liberties.
The Washington Post reminds us of a statement from Alexis de Tocqueville, almost two centuries ago, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
Texas’ Senate Bill 8 is best known for setting a bounty on the heads of women seeking abortions by allowing big-money civil suits against them. The law applies to abortions previously protected by the 1973 Supreme Court decision, Roe v. Wade. That case also arose from Texas law preventing a woman’s abortion choice. What is it with those Texans?
The Texas law allows any citizen to sue a woman believed to have received an abortion in Texas, for monetary damages up to $10,000. The law enables this even though the suing plaintiff has no stake in the outcome, i.e., is not harmed by the abortion. The law would also apply to abortion providers and enablers (like taxi drivers to the clinic) with similar suits. This is contrary to traditional concepts of legal standing.
Step aside from the main headlines and consider another important part of the bill getting less attention. The Texas law is written such that neither the woman nor abortion providers nor anyone else sued under this law, would have immediate redress in the courts. There would be no immediate court review of the action, much less ways to stop or modify it.
I’m betting the Supremes – particularly the conservative Justices – will not buy that argument because it cuts the judiciary out of the review loop. Even Justices not named John Roberts are invested in the stature of the Supreme Court. This is an issue of the supremacy of federal law.
But, let’s say the Supreme Court eventually rules the law may stand. Surely this is a bad thing for women in Texas and in the dozen other states with similar bills just waiting in their conservative legislatures on the outcome of this case. But, but but…. If a law could be written to eliminate judicial review of one enshrined right, could another law be written similarly to evade other Constitutional protections?
If a Texas law could evade the 14th Amendment Due Process Clause (protecting a pregnant woman’s right to privacy in having an abortion), could a California law evade the 2nd Amendment and similarly ban firearms by allowing private citizens to sue manufacturers – or individual gun owners – for large monetary damages?
There is substantial overlap between the nutcases that challenge abortion rights and the nutcases that cuddle firearms. Would they be willing to press one issue, and put the other at risk? We see the growing possibility the Supreme Court will face a case where rightwing gun-toting attendees will frighten and intimidate liberal attendees at a public rally, pitting 2nd Amendment rights against 1st Amendment rights to free speech and assembly.
Speaking of which, no observer of current events can avoid confronting vigilantism, “the investigation, enforcement, or punishment of perceived offenses without legal authority.” The Texas Mess may escape that label on a technicality because SB8 makes their process “legal,” if not ethical. But consider two other high profile cases.
In Wisconsin, Kyle Rittenhouse claims he went to a protest to provide “medical support” he was not qualified to give, while holding a gun he was not legally allowed to have, in a state where he did not live, after a curfew prohibiting his presence. He killed two people and wounded a third. Pure vigilantism. In Georgia, three men are accused of chasing Ahmaud Arbery and killing him on suspicion of “jogging while Black.” Pure vigilantism.
These three cases might be harbingers of things to come. Quoting the WaPo again, “what’s coming could test the courts’ legitimacy with tens of millions of Americans, mostly Republicans, who increasingly see fellow citizens who disagree with them about politics not as rivals for power or opponents, but as actual enemies.” To which I will add, “and they carry guns, too.
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Despite my doom and gloom, it’s the holiday season for most Santa Barbarans. Political things may not have gone as we at Indivisible Santa Barbara had hoped in all cases, but we look forward to Happy Holidays and a Good New Year. Please celebrate with us in your own custom.