Lorie Shaull, licensed under CC BY-SA 2.0
Stop Abortion Bans Rally in St. Paul, Minn. (date unknown)
Last week, the U.S. Supreme Court rejected a request to block enforcement of a Texas law that prohibits abortions after six weeks of pregnancy.
While attempts to ban abortion are not new, this action by the highest court in the land to let stand — even temporarily — a so-called heartbeat bill, is a sign that reproductive rights are in grave danger and that Republican efforts to ultimately overturn Roe v Wade, the 1973 Supreme Court ruling that legalized abortion, could soon be successful.
The law creates a novel method for enforcement, which makes it hard to challenge in court. Rather than authorizing government officials to enforce the ban, it deputizes private individuals to bring lawsuits against abortion providers or anyone helping an individual access one; it also provides a $10,000 award for anyone who brings these actions.
This procedural hurdle has kept a Supreme Court decision on the constitutionality of the bill at bay — at least for now. While abortion bans like this violate the precedent set by Roe, conservative justices argued that the defendants in the case brought by Texas abortion providers only threatened to sue individuals for seeking abortions. They wrote that it was not clear that a state court judge and a private citizen “can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
But even as SCOTUS rejected the pleas of abortion providers for emergency injunctive relief on a 5-4 shadow docket vote, the Texas law was working as intended. Even before the law went into effect at midnight on Sept. 1, Texas clinics were turning away individuals seeking an abortion.
With a stamp of approval from the Supreme Court, conservatives in Texas had created a vigilante enforcement process that dodged the judicial scrutiny of our country’s highest court. And it is deeply concerning.
In this post-Trump era of Republican absurdity, we now have to worry about our fellow community members attacking our rights on behalf of a vocal and organized minority. And what’s worse, it seems like the law will not only shield them, but enable and embolden them.
This is a dangerous and draconian precedent.
Decisions around reproductive health should be between individuals and their health care provider; leaving them to the whims of what are essentially bounty hunters is sadistic.
Writing in dissent, Chief Justice John Roberts argued that deputizing private citizens to enforce the law “insulate[s] the State from responsibility.”
Not only has the state abdicated its responsibility by allowing SB 8 to go into effect, it has greatly devalued our legal system in the process. What good is having a constitutionally protected right if anyone can circumvent the authority of a sound and standing SCOTUS determination through creative lawyering that borders on the absurd? And collect a payday while they are at it?!
Missouri Republicans are reportedly already working on a Texas style bill to also implement a near total abortion ban, and it won’t be long before other states follow suit.
We have started to slide down a precariously slippery slope.
Because the thing is, it will not end at abortion. Radical Republicans have made it clear that when it comes to other issues, including LGBTQ+ equality and voting rights, they are also ready to dismantle any gains made in recent decades with a host of unconstitutional bills they’d like to pass. What’s more, they have an angry base eager to take matters into their own hands.
Republicans are fully intent on tyranny by minority. And they might have just found a way to get it done that passes some sort of judicial muster and ignites the most fascist of their base.
This is a constitutional crisis.
Nada Elmikashfi is a former candidate for state Senate and chief of staff to state Rep. Francesca Hong.
