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Mark Rubin

A Texas Thing

The law at issue comes from Texas, of course. That self-important, self-reverent, self-righteous pustule on the bottom of the lower 48. The place where an Executive Order prevents any political jurisdiction from mandating that people wear masks because: freedom, but where anyone can sue anyone, repeatedly, if they think they were involved with the act of obtaining a constitutionally lawful abortion in Texas.

The Texas Heartbeat Act

The Texas Heartbeat Act bans abortions after a heartbeat can or should be detected; roughly six weeks after conception. Roe and Casey violative, at its core the law represents a very aggressive attempt to undermine the constitutionally protected right to obtain a first trimester abortion. But it’s the fringes and tripwires that have me writing, not the core.

Texas got creative, and in a way designed to destroy the rule of law on at least two levels. In these times states adopt abortion laws to challenge Roe v. Wade and its progeny. Okay. Doesn’t make me happy, and the legerdemain associated with the laws and the factually-challenged arguments their advocates use piss me off royal. But, courts can and do dismiss crap cases. Most of the time, and usually with ease and some grace.

So, what did Texas do? It wrote a law which it – the Great State of Texas – can’t enforce. By design, the state cannot act to enforce the Heartbeat Act. Only people: reg’lar people (as opposed to Official People) can enforce the law. How? By suing anyone if they think they were involved with the act of obtaining a constitutionally lawful abortion in Texas.

Where a statute lacks clarity about who can enforce it, courts look at the language of the statute, intent, and other factors to determine whether a private cause of action exists. Lawyers study this arcane corner of the law, and cases rise or fall on outcomes. Here, however, there’s no lack of clarity and the issue is topsy-turvy, for the Texas legislature established, quite consciously, nothing more than a private cause of action.

Judicial Review

So what? Well, the What involves abortion jurisprudence. States pass laws, affected people sue those state actors charged with enforcing its provisions, and courts decide. The issue, mostly, amounts to whether the law at issues impermissibly infringes on the lawful right to obtain an abortion.

How do you make sure no court can toss a seemingly unconstitutional law? Write the law so that no one (and everyone) can enforce it. (Here’s the very brief Supreme Court opinion and the slightly longer dissents. They don’t address the challenge terribly well, but they get close.)

The Legal Process Going Forward

I mentioned two levels. In addition to writing a law that no one can promptly review, Texas has turned 29,145,505 Texans – and, truth be told, anyone from anywhere – into vigilantes. Need $10,000, which is the bounty on the head of anyone who assists with a post-heartbeat abortion, where assistance can be as little as giving a pregnant woman a few dollars or, probably, taking care of her kids while she gets the abortion. Sue your neighbor! Your co-worker. Law someone. Anyone. Sue them in very Texas county and get judgments for $10K x 254. (Of course, Texas has always been a so-called tort reform leader, trying to limit the right to sue for damages.)

So, can anyone ever challenge the law? Sure. Get sued and raise your constitutional defenses. If you win, you’re a hero for vindicating a constitutional right. And if you lose? Pay the $10,000+. Fees. Blah, blah. Reality? Abortion clinics have closed up shop in Texas, making the Heartbeat Act very, very effective without any further action. And it’s this fact that proves the need for early review of what appear to be clearly unconstitutional laws.

Anarchists Prevail, and So Much for the Rule of Law

We lived in a nation that revered the rule of law. Win or lose, we thought we would get a fair shake in the courts. Not so much, anymore. Five Supreme Court Justices – between them, they have law degrees from Yale (3), Harvard (1) and Notre Dame (1) – could not figure out how to address this conundrum which the Texas legislature created to subvert legal review of a law that, on its face, violates Supreme Court precedents.

I’m a Safe, Legal, and Rare guy when it comes to abortion. And a quiet but serious advocate for choice. Frankly, though, we face issues in this nation that matter more. Matter more because they affect more people by orders of magnitude, and because of the impact on our lives. The pandemic. Climate change. The wealth gap. Etc. Still, this Texas debacle chills me to my core, for it reflects, fundamentally, a disrespect for the rule of law. Anarchy, frankly, and brought to you by expected anarchists – the Texas state government, which oozes contempt for any set of laws or processes it has not written and cannot control – and an unexpected set of anarchists who work every day at One First St., N.E., Washington, D.C.

Shame on you Associate Justice Clarence Thomas. You too, Associate Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. You have disgraced the Court on which you serve, and have given cover to those who destroy us from within by ignoring the rules and processes that allow us to live in a law-based society. You’ve welcomed the anarchists, and they’re ready to enjoy themselves.