Analysis: Texas legislators, with an assist from the U.S. Supreme Court, open a Pandora’s box

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The state of Texas has figured out, at least for now, how to do unconstitutional things in a way that doesn’t raise a majority of the eyebrows in the U.S. Supreme Court.

The court turned back a legal effort by abortion providers to stop the state’s new ban on abortions after six weeks of pregnancy while that new law is being litigated. It means most abortions are illegal in Texas and will remain so unless the courts eventually find the new law unconstitutional. Some justices already have said as much.

The peculiar enforcement built into the law seemed to baffle the judges, as it was intended to do. Instead of the state enforcing the law — the normal way these things work — the state’s anti-abortion measure leaves that to private citizens, who are empowered to sue anyone who “aids or abets” someone seeking an abortion — from the doctors who perform abortions to someone who drives a woman to a clinic. It includes a “bounty hunter” provision that allows someone who successfully files a suit to collect $10,000 on top of legal fees.

In its 5-4 ruling, the court didn’t rule on the law itself. The unsigned majority opinion wrestled with the enforcement scheme, saying “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”

Chief Justice John Roberts, in his dissent, called the law “not only unusual, but unprecedented.” He wrote the first of the four dissents: “The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”

Justice Steven Breyer said it this way: “Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage.”

Citing a previous opinion, he added: “we have made clear that ‘since the State cannot regulate or proscribe abortion during the first stage… the State cannot delegate authority to any particular person… to prevent abortion during that same period.’ The applicants persuasively argue that Texas’s law does precisely that.”

Here’s a question: If you can impede someone’s constitutional rights with an odd citizen enforcement strategy, what’s the limit? Abortion is in that category because the Supreme Court has ruled that women have such a right. If it can be undermined, other rights, like voting and speech and all the others, are subject to the same risk.

Justice Sonia Sotomayor said it like this: “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand… In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”

Put the state’s new voting law through that logic, and the worst scenes from the 2020 elections start to look like a good day at Six Flags Over Texas.

Here’s Justice Elena Kagan: “Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf.”

The country just noticed Texas, and although Texans have been watching the debate over this law all year, even some of them are surprised at how quickly the legally protected right to abortion disappeared.

Republican voters in Texas (74%) strongly support making abortion illegal after six weeks of pregnancy — a restriction that eliminates an estimated 85% of all abortions in the state. Among Democrats, 67% oppose that idea, but they’re not in power in state government. Those differences are no surprise to anyone who follows Texas politics.

That enforcement idea, though — bounty-financed citizen brigades in place of law enforcement — is a new twist. The courts will figure it out in time, and if the law remains in place, so will all those fine folks you see on social media. The same kind of crowd-sourcing that makes social media so toxic could do the same for some kinds of law enforcement. Creative lawmakers will use it again, the better to get around investigators and prosecutors they don’t like.

The mob can decide instead.

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