Thursday, September 9, 2021

End of Roe? Texas law threatens abortion rights everywhere -- Sept. 9, 2021 column


Texas Gov. Greg Abbott offered a bizarre defense of his state’s new, unconstitutional anti-abortion law.

Asked Tuesday why the state would force victims of rape or incest to carry pregnancies to term, he denied the law does that.

“Obviously, it provides at least six weeks for a person to be able to get an abortion,” Abbott said. No, it doesn’t.

The Texas state law known as Senate Bill 8 prohibits abortion after a fetal heartbeat is detected, which is usually four weeks after conception or two weeks after a missed menstrual period. That’s before most women even know they are pregnant, before the embryo becomes a fetus and months before fetal viability, generally at 24 weeks.

The law effectively prohibits about 85% of the abortions in the state and will force most abortion clinics to close, providers say.

The Republican governor also said: “Rape is a crime, and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas.”

Really? Eight in 10 rapes are committed by someone who knows the victim, often a family member or family friend, according to the anti-sexual violence group RAINN.

Critics said Abbott is ignorant, but it’s more likely the governor, a graduate of the University of Texas and Vanderbilt University Law School, knows the facts and is playing to his constituents.

About a dozen other states have passed anti-abortion “heartbeat” laws but courts have tossed them out, at least temporarily, as unconstitutional. What makes the Texas law different, and threatening to abortion rights nationwide, is its enforcement mechanism.

Unlike other states’ laws, Texas specifically blocks state or local officials from enforcing it and leaves enforcement to individuals. Any private citizen anywhere – not just in Texas -- can bring suit against anyone in Texas who performs an abortion or “aids and abets” one.

The patient may not be sued, but anyone who pays for an abortion, the doctor, nurses, abortion counselors, even someone who drives a patient to a clinic can be sued.

State courts are required to award the private citizen $10,000 for each abortion identified. The defendants – abortion providers -- cannot recover their court costs even if they win.

The Supreme Court last month ruled 5 to 4 to allow the Texas law to go into effect, although it did not rule on its merits. Chief Justice John Roberts joined the three liberal justices in dissent.

“The Court’s order is stunning,” Justice Sonia Sotomayor wrote in a blistering dissent. Calling the Texas law “flagrantly unconstitutional,” she said the majority of justices “have opted to bury their heads in the sand.”

The clever way the law was written has made combatting it difficult, but the Biden administration is preparing to sue Texas.

Democrats on the House Judiciary Committee wrote Attorney General Merrick Garland and the Justice Department urging them to prosecute “would-be vigilantes.”

“The Department of Justice cannot permit private individuals seeking to deprive women of the constitutional right to choose an abortion to escape scrutiny under existing federal law simply because they attempt to do so under the color of state law,” the letter said.

Bounty-hunting on healthcare workers is a novel twist on laws aimed at rewarding private citizens who are whistleblowers against fraud in government programs, such as Medicaid and Medicare, or defense contracts.

So-called “qui tam” statutes allow individuals to bring fraud cases and incentivize them with an award. Congress passed the False Claims law in 1863 to combat fraud by companies that sold shoddy supplies to the U.S. government during the Civil War.

 A law professor who clerked for the late conservative Justice Antonin Scalia reportedly helped Republican lawmakers craft the private-enforcement strategy. By empowering citizens to bring lawsuits against abortion providers, Texas has succeeded so far in circumventing a constitutional challenge.

Other Republican governors are already using Texas as a model for stricter anti-abortion laws.

Regardless of how you feel about abortion, stop and think about the precedent of a state using vigilantism to enforce laws.

It’s one thing for private citizens who observe fraud to be rewarded for coming forward, but Texas has enlisted residents of any state to enforce a social standard.

This is a slippery slope, and any state could incentivize individuals anywhere to enforce its pet social mores.

Conservatives are celebrating now, but liberals can turn out to be just as ingenious in using these laws.

©2021 Marsha Mercer. All rights reserved.


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