Republicans have a pretty substantial history of selling out the principles they claim to live by. Corporate welfare to undermine capitalism, tech regulations that undermine free speech, entrenched support for policing that’s as big government as it gets, and lately, really short-sighted abortion laws that will ultimately undermine basic civil liberties like the Second Amendment.
Texas Republicans are the latest to make me wonder… with friends like these, who needs enemies? One thing is clear: the GOP is either really bad at playing chess, or they just don’t mind losing the long game in exchange for cheap, immediate wins.
Over the past year, GOP state lawmakers in Texas passed an abortion law that has a unique twist. After decades of trying to go after Roe v. Wade and failing, they took a new approach—essentially recognizing that Roe is the law of the land. So instead of trying to challenge the Supreme Court precedent, they hung their hats on a citizen enforcement clause.
Basically, the state says it will pay citizens to identify and file lawsuits against abortion providers in the state. This would be unconstitutional for the state itself to do under Roe, but in handing off the enforcement to residents (and pushing the legal claims into civil vs criminal court) it seems lawmakers found a loophole in the law.
I guess this is clever loophole lawmaking… if your goal is limiting abortion at the cost of all other civil liberties? But that’s a goal only a radical fringe share in this country.
While Americans can hold many good-faith positions on the issue of abortion, it’s doubtful many are willing to give up their gun rights or their freedom of speech in exchange for fewer legal abortions—and that’s what this precedent endangers.
How would this law create this scenario?
Let’s review how our court system works. Rather than going back and looking at the original Constitution or intention of the founders, judges typically rely on what’s known as stare decisis when evaluating claims of constitutionality and legality. That essentially means they look to see previous cases that presented similar questions and largely rule based on what was decided in the past—what’s known as legal precedent.
Once a legal precedent has been established, you need to overturn it with litigation that overrules it. And when it comes to suing the government over its own laws, that’s a very expensive process few can undertake.
Suffice it to say, legal precedent is very hard to overturn, and it will have implications on future cases for decades to come, allowing a slow erosion of our rights in the courts. So, in finding a loophole around a currently-established constitutional right, Texas lawmakers opened the door for other states to use the same process against any number of other basic rights.
Several groups attempted to sue and strike down the Texas law for that very reason. The lawsuit included far-left groups like the American Civil Liberties Union and pro-gun groups like the Firearms Policy Coalition. While the groups likely had vastly different concerns over the law, they both agreed it had the potential to severely undermine basic liberties in the US.
But as of this week, that lawsuit has been thrown out by the Texas Supreme Court. This means the Texas law gets to stand and legal precedent has now been established for the immediate future. (It could still eventually face further legal challenges).
BREAKING: The Texas Supreme Court ruled that our lawsuit against Texas’ ban on abortion at 6 weeks of pregnancy, SB8, cannot proceed.
SB8 will remain in place in Texas for the foreseeable future.
This is a devastating blow for abortion rights in Texas and across the country.
— ACLU (@ACLU) March 11, 2022
What’s to stop a state like California from now using this same tactic against gun rights?
Erm, basically nothing. They could easily set up a system for citizens to sue gun owners or gun stores in a similar manner.
As Erik S. Jaffe, a lawyer for the Firearms Policy Coalition, said, “other states could create ‘private bounty schemes’ to ‘target persons who marry someone of the ‘wrong’ sex or color, criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct.”
This is a short-sighted and dangerous move by Texas Republicans.
Furthermore, there’s little reason to think this will do anything to uphold human life. Abortion bans merely create black markets, which endanger the lives of mothers and children in new, and often more horrific ways. Desperate people will still seek procedures. Many will do so in other states without the ability to vet their providers as well, others will take pills without the supervision of a doctor, some will try old school methods like hangers, and still others will seek under-the-table operations that may provide unclean and unsafe environments.
And that’s just the horrors presented on the black market for those who will still seek abortions. For those who are forced to keep their unwanted pregnancies, there are other horrors. Women being forced to carry and give birth to a child with a brain growing on the outside of their head or other similar birth defects is a senseless and unimaginable trauma to inflict on a person—and a painful birth and certain death for the child.
Young girls being forced to carry the child of their rapist or even inner-family molester is another disgusting thought. And then come the horrors of poverty and abandonment that often befall the unwanted children who are born. These are the nuanced and tough subjects people on the Right rarely want to confront when it comes to abortion.
If we want to actually limit abortion in a way that upholds human rights and basic ethics, there are non-governmental solutions. And we’ve already seen them at play in recent decades.
In 2019, the US abortion rate hit a new low. According to the New York Times, “The abortion rate—the number of abortions per 1,000 women of reproductive age—dropped to 13.5 in 2017 from 16.9 in 2011, the lowest rate since abortion became legal nationwide in 1973.”
Why has this happened? There’s little correlation to indicate state restrictions have played a role. Instead, easier and wider access to birth control and other contraceptives likely played the biggest part. Additionally, better sex education and access to family counseling seem to play a role too.
If we want to limit abortion, it’s time to step up to the plate. Put your money where your mouth is. Voluntarily support single mothers and low-income families facing hard choices, push for over-the-counter birth control and sex education in schools, get your church to open a low-income daycare.
There are obvious ways to end abortion without violating anyone’s rights. Those that choose to instead take the lazy, careless road for short-term wins will end up hurting us all in the long run.