You Wanna Play This Game?

Texas has effectively banned most, if not all, abortions through a little trickery designed to wordsmith its way around the federal Constitution. The law is objectively unconstitutional, but that doesn’t mean conservative judges won’t indulge Texas’ shenanigans. Perhaps liberals should go on the offensive and see if it doesn’t make conservative justices think twice about approving the Texas tactics.

I’m not a liberal, and thus, I have mixed feelings about gun control laws. But here is an area ripe for a direct challenge to the Texas strategy of circumventing the Constitution. California’s assault weapons ban, in place since 1989, was overturned this summer by a conservative federal judge. Using Texas’ strategy, California could consider passing a new law that wouldn’t ban these weapons outright, but would empower citizens to sue fellow citizens or businesses known to possess, sell, trade, or traffic in such weapons. The person suing would not have to have been harmed by the actions of the defendants. They would not need to have any relationship to the defendants. They don’t even have to live in California. Successful lawsuits would earn the plaintiffs $10,000 for each weapon, a court order to melt and destroy all such weapons in the defendant’s possession, an order forbidding future possession or sale of such weapons by the defendant, as well as all costs and attorney’s fees. An unsuccessful lawsuit would, despite its lack of success, get the innocent defendant nothing.

Seems ludicrous, no?

This is exactly what the Texas anti-abortion law does. Senate Bill 8 allows citizens to sue anyone who aids and abets an abortion where a fetal heartbeat has been detected or a doctor fails to test for such a heartbeat. A fetal heartbeat is usually present about six weeks after a pregnant person’s last menstrual cycle – so very early in pregnancy, often before people know they are pregnant. The fetus has nothing resembling a heart at this point. The “heartbeat” is really more of an electrical impulse. The person suing, can be anyone, and need not have suffered any harm, nor even know the person they are suing. If successful, the plaintiff is awarded at least $10,000, attorney’s fees, costs, and a court order barring the defendant from future aiding and abetting. The person being sued, if successful in overcoming the accusations, gets nothing. There are no exceptions for rape or incest (except that the rapist can’t be the one filing the lawsuit – can you imagine?).

The Constitution, for now (see Roe v. Wade), forbids states from banning abortions before a fetus is viable – meaning before a fetus has a good chance of surviving if it were born. This is generally months into pregnancy. A mass of cells with an electrical impulse would certainly not survive outside of the womb. So how is Texas getting away with this?

Federal courts usually order states (or technically individual state actors) to stop enforcing unconstitutional restrictions. In this case, Texas argues that the state is not enforcing the law – ordinary citizens are. Never mind that the state passed the law, and its courts hear the cases and enforce judgments.

No court has decided the constitutionality of the law. But two different lawsuits have attempted to win a preliminary injunction – meaning a halt to the law while the courts sort things out. A district court, in fact, granted such an injunction earlier this month, only to have the Fifth Circuit Court stay the injunction. The law was paused, and then restarted. Which brings up another sinister aspect to the Texas law – defendants are not allowed to claim they relied on a court ruling that was later overturned. This aspect, as well, may be unconstitutional; but until courts make a final decision, there is this tremendous, built-in, deterrent effect. Indeed, Texas tried to argue against an injunction by claiming it would simply be ineffective. The law is written, in multiple ways, to attempt to evade the tools that courts and defendants might normally use to to shut down unconstitutional state action.

Perhaps this is the poison pill in the law. What court would want to give up any of its power? The power of federal courts to find state laws unconstitutional is at risk. It is the same power that can be used by ordinary citizens to overturn oppressive, unconstitutional state laws. To avoid that outcome, liberal states should get aggressive.

The California gun law is one example of how they might do this. Regulating hate speech, normally protected by the First Amendment, is another possibility. A liberal state could pass a law enabling citizens to sue other citizens – random people on Twitter, musicians, movie producers, authors, publishers – if they can show they used “hate speech” in their statements or art. “Hate speech” would have to be defined carefully; and this is another area I would not necessarily be enthusiastic about, but at least courts would be forced to decide if they want to find a way to strike down illegal state laws, or if they prefer to disarm themselves and our Constitution.