I am surprised at how legal experts discussing the Texas anti-abortion law have not ripped that piece of legislative trash to pieces. Some even applauded the legislation for its diabolical genius. I call bullshit on any attempt to describe this legislation as anything other than a transparent, ham-fisted effort to restrict and ultimately ban abortion. The purpose of this legislation is exposed in Section 2 when they declare that the state statutes in place before the Roe versus Wade, 410 US 113 1973 decision criminalizing abortion were still in place and never repealed (wink wink). Not ironically, this is the same legislation that Roe v Wade overruled. The new legislation even includes language that anticipates the Supreme Court overturning Roe v Wade.
Roe v Wade established the constitutional right to seek an abortion. The Court determined that the decision to have an abortion was up to the woman during the first trimester. The fetus was deemed viable in the second trimester, and states could regulate or outlaw abortions except when the woman’s life or health was jeopardized. Before the ink was dry on the decision, Republicans waged war on the ruling and began doing everything they could to end this constitutional right. The same regressive politicians that tell their followers that the requirements to wear a mass should invoke the spirit of Patrick Henry wants to control and interfere with women’s freedom to make the most personal and intimate decisions of their lives.
The Court applied what is known as a strict level of scrutiny in deciding the case and what this means is for state action or legislation to stand, it must prove a compelling interest in sustaining the government action. Not so ironically, the legislation in question for Roe v Wade was Texas legislation also. Somehow, this time the Texas legislation thinks making a declarative statement that they have a compelling interest somehow makes it so. If the Court were not biased and determined to ban abortions, it would strike down this legislation again because it fails the compelling interest standard.
In 1992 the Court decided in Casey v Planned Parenthood that Pennsylvania restrictions to an abortion which included a 24-hour waiting period, informed consent, parental consent for a minor, were upheld. A restriction that required a married woman to notify her husband of her intention to obtain an abortion was not upheld. The Court, in a close decision, reaffirmed Roe v Wade.
They also established an “undue burden” test for state laws that present a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Viability is medically defined as between 22 to 24 weeks in the United States. The text of the new Texas legislation ignores the viability standard and creates a new standard in contravention of the Court’s decision. Their legislation cynically mandates women have up to six weeks to have an abortion when they know most women don’t realize they are pregnant. The heartbeat of a fetus generally begins at six weeks. Once again, if the Republicans hadn’t packed the Court with judicial hit (wo)men, the legislation would be struck down under the undue burden standard established in Casey.
The so-called “Texas Heartbeat Law” is a patchwork of declarative statements that delegate their governmental authority for enforcement to practically any citizens through civil actions. Somehow, they believe this subterfuge should shield them from claims of unconstitutionality. How could this be when the government action scrutinized will not be the civil suit brought by a citizen. Instead, the focus will be on the constitutionality of the government action that enabled citizens to bring these lawsuits.
There is very little, if anything, that is clever about the Texas anti-abortion legislation. It uses circular arguments to impede on the authorities of a separate branch of government (courts). The legislation sets out to neutralize the affirmative defense of establishing an undue burden and ties a court’s hands from awarding a defendant relief. This part of the law substantially eliminates any discretion of the Court in deciding a case that is supposed to be based on the preponderance of the evidence. It also establishes no risk for any civilian plaintiff bringing an action. These provisions are an incentive for malicious and frivolous lawsuits and even worse vigilantism.
Assuming that these suits are civil, there is the issue of standing. There are three basic requirements for a party to establish standing or the right to sue. First, (1) a person must have suffered an actual injury, an injury in fact. The injury could be physical, economic, or aesthetic. Second, (2) the injury must be caused by the party being sued. Thirdly, (3) the Court will be able to redress the injury, correct or make up for the plaintiff’s injury. In effect, this legislation creates standing for anyone other than the person who impregnated the woman, despite not satisfying elements (1) and (2) for establishing standing. This flaw alone should be the death knell of this legislation.
Does this legislation also create an implied or express agency between the Texas government and the civilians that bring suits? These civilians are proxies for the Texas government trying to accomplish what would be unconstitutional if the government enforced it. What happens to the compelling interest standard? Does that get transferred to the government’s agent? If there is an agency relationship, then the Texas government would be liable for the outcome of an agent’s actions. Texas is deputizing civilians; nearly all civilians, to carry out law enforcement for what the government still maintains is a criminal act. The Wild, Wild West is alive and not so well in Texas.
Some justify their opposition to abortions, claiming that their devotion to the unborn fuels their activism, but that doesn’t comport with their cruelty towards children once they are born. Others will speak of religious convictions for imposing their will on the government and millions of citizens. Still, they also hide behind the constitutional guarantee of separation of church and state while violating it regularly. Let’s be frank, much of the motivation behind fervent opposition to abortion is not based on some high-minded principles but instead a patriarchal obsession with maintaining power and control over women. The Texas “Heartbeat Law” is the evolution of nearly five decades of relentless attacks on a woman’s constitutional right to privacy, her constitutional right to choose to have an abortion. For many, that crusade to restrict or end that right it’s about power, power over women, their bodies, their lives.
Sources:
https://legiscan.com/TX/text/SB8/2021
https://www.law.cornell.edu/wex/strict_scrutiny
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