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Dershowitz: This Texas abortion law is so unconstitutional, I don't know where to begin
Although I usually skip over anything posted in Hot Air by editor “Allahpundit”, I think he’s got the better argument here than the law’s proponents:
“[Dershowitz] is right about Texas’s law being untenable. Lay aside abortion politics and focus on the baroque procedure specified in the statute, he says in the clip. How can it be that the rights guaranteed to you by the Constitution can’t be directly infringed by the state but can be indirectly curtailed by empowering the public to sue anyone who assists you in exercising your rights? Texas’s law bars the state from taking any action against abortion providers and those who “aid or abet” them but authorizes private actors to sue those same people for each abortion they perform on a fetus that’s older than six weeks. A plaintiff who can prove that the abortion happened will collect $10,000 from the defendants, a financial inducement for pro-lifers to start filing complaints.
“Texas’s law was written in this strange way precisely because the legislature knew that if it followed a standard enforcement model in which the state itself prosecutes an abortion provider criminally, the courts would enjoin them from enforcing the law under Roe v. Wade and Planned Parenthood v. Casey. Texas wanted the statute to take effect and figured a novel decentralized enforcement mechanism would make the Court think twice about enjoining it, at least before any actual private lawsuits had been filed. And it worked. SCOTUS declined to block the statute when asked because there were no legal challenges to it that were ripe. The state of Texas wasn’t a proper defendant because there’s no role for the state under the statute.
Conservatives should be just as outraged by this legal ruse as liberals are. After all, if the Texas scheme actually succeeds in the long run, what’s to stop an anti-gun state legislature from banning handguns in the home, in clear violation of SCOTUS precedent, and then placing state officials beyond the reach of federal judicial review by outsourcing the ban’s enforcement to an army of private-sector gun control activists? Most gun shops would probably go bankrupt overnight when faced with the wave of private-sector civil suits that such a state law would unleash. Is that the future that conservatives want?
Back in the Obama daze days, we had a Greenwich Democrat commenter who took a special delight in celebrating his president’s illegal executive orders. I warned him then that he should be careful about approving unconstitutional acts, because someday a president he didn’t like would be in office, and he wouldn’t like the new executive orders issued from the Oval Office. Our commenter left Greenwich and the discussion before Trump assumed power, but I occasionally thought of him when Trump exercised the false authority created and abused by Obama, and wondered what he thought about that.
Same thing here.
