Texas’s revolutionary law
I came across an excellent post by Infidel753 who happens to blog at a site of the same name. I believe Infidel gives a sound rendition of the issues with the Texas recent abortion law and SCOTUS court’s reaction to it. The issue of “standing” is made by Infidel in his recital of the issues.
I believe he is right on this point as well as the commenter JackD who said it is no one else’s business. Jack’s claim is of the same intent. It remains to be seen how the court will address this issue.
The argument against abortion as stated by COA Judge Thapar is; “‘The question of whether and how to regulate or restrict abortion belonging with state legislatures that can legislate in accordance with community values. And if the public is unhappy, it can fight back at the ballot box.’
In his final line, Thapar employs the use of the term ‘choice,’ urging SCOTUS — ‘courts to return this choice to the American people — where it belongs.’”
As determined by the partisan advantage of a state whether by majority or gerrymandered into power which a Roberts SCOTUS has refused to rule upon an individual woman’s right to decide? Or perhaps it is a religious determination as empowered by Federalists?
I ponder on this too long. “Infidel” introduces the argument of “standing” in who decides. I think he is right.
The extraordinary thing about Texas’s new anti-abortion law isn’t that it bans the procedure at such an early stage of pregnancy, or that it has no rape/incest exception. Those are common features of wingnut laws in this field. What’s extraordinary is its provision allowing any citizen to sue almost anyone even remotely involved in an abortion.
A basic fact about how lawsuits have always worked is that the party filing the suit needs to have “standing” — that is, needs to be able to claim some kind of direct harm from the action which the suit is about. For example, if somebody owes you money and refuses to pay, you can sue him for the money because his refusal to pay is causing you direct financial harm. Some random stranger who just heard that the person is refusing to pay up, and isn’t owed any money but simply doesn’t approve of the guy’s behavior, can’t sue, because he isn’t affected. This is necessary to prevent the court system from being engulfed in chaos. If people with no standing could sue over things, then any action that becomes public knowledge and which a lot of people disapprove of could trigger millions of lawsuits. Courts routinely reject lawsuits on the grounds that the person suing does not have standing to do so.
But this is precisely the norm that the new Texas law seeks to abolish. It explicitly gives anybody in Texas (or even elsewhere in the country) the right to sue anyone who helps a woman in the state get an abortion, even if they are completely unaffected by her decision to do so. The purpose of this provision was to make the law hard to overturn, since it’s citizens and not the state who are empowered to enforce it. That’s bizarre enough.
But granting a right to sue without real standing is revolutionary.
If this provision is allowed to stand, it’s hard to see what could stop other states from using it to destroy any business or interest which is politically unpopular locally. Blue states could pass laws allowing any uninvolved citizen to sue gun stores or manufacturers if a gun traceable to them is used in a crime. Anti-porn nuts could be empowered to sue porn websites out of existence even if they’ve never been affected by material posted there. Any kind of enterprise or activity that a state government happens not to like could be harassed into oblivion at will by passing such a law. And remember, even private individuals can be sued without standing under the Texas law, so if it is upheld and sets precedent, any private individual in any other state who does anything which enough state legislators disapprove of could be similarly made a legal target.
Unless the Supreme Court has completely abandoned precedent and the Constitution in order to become a handmaiden of theocracy — and a number of recent rulings on other issues have not gone the way the wingnuts hoped — it’s hard to imagine it upholding this concept in the long run.
Notwithstanding the ensuing hysterics in the blogosphere, the Court’s decision this week not to “freeze” the law did not constitute a de facto overturning of Roe v Wade. Not even close. The majority opinion clearly stated: “In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” and it conceded that the clinics filing suit had raised “serious questions regarding the constitutionality” of the law.
If opponents of the law are smart, they’ll focus on the lawsuit provision and the chaos that would result if it is upheld. Because if it is, then the country is headed into uncharted — and very turbulent — legal waters.
The court may not have ruled on the constitutionality of the law but they certainly allowed it to operate for the present to the expense and disruption of what few abortion providers remain in Texas and maybe elsewhere as well.
Golly, I guess provided you can stand some intermediary up to explain that the SCOTUS decision actually was procedural, then you might not get abused here.
See the post above.
When elected US legislators are too afraid of the electoral repercussions to make the rule of law, then the rule of five men will do. Mindless fear leaves little room for the rational evaluation of consequences.