• November 28, 2021

This Texas abortion law is so unconstitutional I don’t know where to start – HotAir

We’ve had many unlikely developments in American politics in the last five years, but Alan Dershowitz pontificate on Newsmax, the far-right answer to Fox News, is near the top.

Then again, when did Dershowitz say no to any television opportunity?

Watch, then read on:

You are correct that Texas law is untenable. Put aside the politics of abortion and focus on the baroque procedure specified in the statute, it says in the clip. How can it be that the rights guaranteed by the Constitution cannot be directly infringed by the state but rather may Be indirectly restricted by empowering the public to sue anyone who helps you exercise your rights? Texas law prohibits the state from taking action against abortion providers and those who “aid or incite” them, but it authorizes private actors to sue those same people for every abortion they perform on a fetus over six years old. weeks. A plaintiff who can prove the abortion occurred will collect $ 10,000 from the defendants, a financial incentive for pro-lifers to start filing complaints.

Texas law was worded in this strange way precisely because the legislature knew that if it followed a standard compliance model in which the state itself criminally prosecutes an abortion provider, the courts would prohibit them from enforcing the law under Roe v. . Wade and Planned Parenthood v. Casey. Texas wanted the statute to go into effect and thought a new decentralized enforcement mechanism would make the Court think twice about banning it, at least before an actual private lawsuit is filed. And it worked. SCOTUS refused to block the statute when asked because there were no legal challenges that were mature. The state of Texas was not a suitable defendant because the state has no role under the statute.

By allowing the law to take effect, the Court is will deter some abortions. That’s a good thing from a merit standpoint, but it’s hard to square with Casey’s decision that prohibits states from placing an “undue burden” on a woman’s right to have an abortion.

The law, known as SB 8, prohibits abortions after six weeks of pregnancy. That is often before women realize they are pregnant. and it could effectively ban between 85% and 90% of abortions, abortion rights advocates said …

The mere threat of litigation has prompted abortion clinics in Texas to immediately limit their abortion services in accordance with the law

One risky way abortion providers could try to challenge the law is to continue providing abortions after six weeks, which invites a lawsuit, said Vikram Amar, a professor at the University of Illinois School of Law.

They could then argue that the law is unconstitutional and “wait for a state court to decide to follow the existing precedent of the Supreme Court and declare the state law invalid,” he added.

Right, the obvious way for the Court to get to the merits of the Texas procedural scheme (and perhaps ultimately the merits of Roe and Casey) is for some abortion provider to be sued and then challenge the statute. . But for the time being, with the statute now in effect, some women will find out that they are pregnant after their sixth week and then find that they cannot find a provider willing to perform an abortion for fear of liability. As long as Casey remains a good law, which it is for the time being, the deterrent effect on providers created by this dubious enforcement scheme would appear to amount to an “undue burden” on abortion rights. In which case, why didn’t the Court order civil litigation under the statute until it considers the merits?

Or is there just no way someone can gain kudos unless and until a supplier is sued for it? You’d think that Texas election advocates would have recruited a sympathetic plaintiff to file an abortion complaint for the sole purpose of properly presenting the matter to the Court.

Regardless, it’s easy to see why this private lawsuit enforcement scheme is a nightmare in the making. Damon Root:

Conservatives should be as outraged by this legal stunt as liberals. After all, if the Texas scheme truly succeeds in the long run, what will stop a state anti-gun legislature from banning firearms in the home, in clear violation of SCOTUS precedent, and then place state officials beyond the scope of federal judicial review? Outsource enforcement of the ban to an army of private sector gun control activists? Most gun stores would likely go bankrupt overnight when faced with the wave of civil lawsuits from the private sector that such a state law would trigger. Is that the future that conservatives want?

What if Congress passes a plan that allows anyone to sue the Internet service provider of any conservative website that criticizes Joe Biden? Is that a violation of the First Amendment?

Of course it is. The state would delegate motivated actors to do its rights-infringing dirty work through litigation. the Wall street journal He’s also not impressed with Texas law, viewing it as an instruction manual for civil disunity to the extent that it would pit citizens against each other in court, but it could also be a major political liability:

The law sets a terrible precedent that conservatives should hate. Could California allow private citizens to sue people for hate speech? Or does New York delegate private lawsuits against gun owners? …

Texas Republicans have handed Democrats a political grenade to damage the anti-abortion cause. Pro-life groups have argued for almost 50 years that abortion is a political issue that must be resolved in the states through public debate. However, now in Texas they want to use the courts through civil litigation to limit abortion …

We sometimes wonder if Texas Attorney General Ken Paxton is a progressive plant. His ill-conceived legal attack on ObamaCare backfired on Republicans in last year’s election and he lost on the Supreme Court. Now he and his fellow Texans are leading with the chin on abortion. How about thinking first?

Some have compared the Texas plan to Biden’s White House habit of whispering to Facebook to do more to ban anti-vax disinformation on its site. That was a case where the government tried to get a very influential private company to censor speech that the government itself could not legally censor, morally not that different from what Texas is doing. But the degree of coercion is different. Texas has used its legislative power to create a formal financial penalty for abortion providers if they are successfully sued under the new law. The Biden White House should not be pressuring a private actor to censor anyone, knowing that the government “lobby” always carries a hint of threat, but it did not use formal state power to bend Facebook to its will.

And in any case, if you accept that the White House should not offer Facebook suggestions on who to ban, you should accept that Texas should not create new grievances as a privatized end of the Court’s abortion jurisprudence. At least not until the Supremes finally get rid of Casey.

If you’re wondering what precedent they could eventually use to repeal Texas law, by the way, consider the strange case of Shelley vs. Kraemer. In that ruling, the Court held that private actors do not violate the Constitution when they enter into real estate contracts that explicitly exclude blacks from future property. They are private actors, after all. How could they? But If they try to enforce those contracts in a court of law, it’s a different ball game. The court is an arm of the government, a state actor, and the Equal Protection Clause does it prohibit state actors from engaging in discrimination, SCOTUS argued. That decision is strange because, if taken seriously, every contract in America is ultimately a matter of state action and therefore should also be subject to constitutional rules. A contract is only as good as a court’s ability to enforce it, right? (For example, does a court enforce a nondisclosure agreement violate the First Amendment?) Texas law could be struck down with the same tortured logic. The legislature and executive may not be guilty of violating a woman’s right to choose under the new law, but the courts it would be guilty of violating the “undue burden” standard if they brought lawsuits under the statute and passed sentences against abortion providers. We’ll see.

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