Texas Abortion Law: A Quick Rant

Partisans on both sides of the aisle need to take a deep breath, take a step back, and reconsider the recent Supreme Court decision.

Let’s talk about the Texas abortion law and the recent Supreme Court decision because I believe there are a couple of things that partisans on both sides of the aisle seem to be missing regarding this specific decision.

I’ll do my best to keep the scope of this conversation limited and narrow. More importantly, I don’t feel the need to weigh in on the partisan nature of the abortion debate because… well… I’ll leave that to the partisans.

Constitutional Rights Haven’t Been Overturned — Yet

Relax. The Supreme Court did not just overturn Roe v. Wade. Those of y’all on the left or pro-choice side — please — take a deep breath.

The “ruling” is super technical in nature. The Supreme Court essentially litigated the original injunction placed on the law, but they did so through what is called the “shadow docket” by deciding not to take the case. (There are good-faith arguments, especially those highlighted by Justice Elena Kegan’s dissent.)

Why did they decide this? Well, it’s because this specific law found an interesting two-part loophole.

First, most lawsuits involve a state actor (i.e., a governor, an attorney general) who a plaintiff can sue to stop the said state actor from enforcing the law. Instead, the Texas law explicitly removes that authority from the more traditional political actors.

Second, in lieu of those traditional political actors, the Texas law essentially deputizes the entire state of Texas. Texans — all 29 million of them — are empowered to file suit against abortion providers who perform their services past the six-week threshold. Also, the Texas law puts a bounty system in place, incentivizing Texans to snitch to the tune of $10,000 per abortion performed (plus legal fees).

(There is also some language about “aiding and abetting” that can send this whole conversation down another confusing rabbit hole. For example, Texan #1 can’t sue another Texan #2 who receives an abortion, according to the law. But Texan #1 can — what? — sue the Uber driver who transports Texan #2 to the clinic? Or, the aunt of Texan #2 who provided money to pay for the abortion? I’m not so certain on that part.)

Either way, there isn’t a clear-cut defendant in this case — at least, not in the traditional sense. That is the primary thrust of the majority decision.

The decision has nothing to do with the constitutionality of abortion rights. Though their inaction serves as a de facto green light for the Texas law — and, arguably, every other red state to follow this model — it doesn’t touch the precedent case. Even though this law was clearly designed to set the stage for the legality of abortion, that showdown didn’t just happen. That day will likely come, but it just isn’t now.

However, there’s a catch. (There always is one, right?)

Because of this law, no provider is going to take the risk of offering abortion services in Texas that may put them in the crosshairs of litigation. If there are no abortions performed, then who will Texans sue? If no Texans sue, then what’s the likelihood of this ever coming in front of a judge? If it can’t go in front of a judge in Texas, how will it ever work its way up to the Supreme Court?

Though conservatives and pro-lifers might be high-fiving each other for “cracking the code,” their exuberance is premature because they might not be considering the blowback that might occur from this.

Careful What You Wish For, Conservatives

The Texas model can not only be replicated by other red-state legislatures but also by blue-state legislatures — but with their own unique twist.

By punting on constitutional review, the Supreme Court shined a light on a pathway for other bans to follow suit — some of which conservatives will find detestable.

For example, what will stop California from banning guns in a similar fashion? The California State Assembly could empower Californians to sue anybody who sells guns and offer a $10,000 bounty for every illegal gun sold.

Turnabout is fair play, no?

Such a hypothetical is law is clearly unconstitutional — just like the Texas abortion law. However, a legal challenge to this law lacks the sufficient defendants and plaintiffs with legal standing — just like the Texas abortion law.

As a result, gun-store owners will likely close up shop. Even black-market dealers may think twice about selling their illicit goods because the entire state of California is hunting them down to collect that reward.

There is no shortage of constitutional rights — whether it is the right to terminate an unwanted pregnancy or own a firearm — that are at risk due to this legal end-around.

This is the Wedge Issue That Never Ends

One thing is for certain: This ain’t the end of the abortion debate. Far from it.

This judicial act of inaction just turned up the thermostat on the already heated culture wars. And we will certainly see this play out in red states who want to emulate Texas. And, even if blue states don’t follow the hypothetical gun law that I laid out, they could certainly begin to codify more protections for abortion rights for their citizens. Both sides of the aisle will, of course, use this as fodder for future battles, filling war chests with the resources needed for pro-life and pro-choice candidates to keep duking it out at both the state and national level.

In the end, abortion still remains to be the most galvanizing wedge issue that fuels our two-party death spiral into gross partisanship and repugnant tribalism.

So — thanks for nothing, SCOTUS.