Texas Abortion Bill (SB8): a Danger to the American Legal System?
By: Ashka Shah
Senate Bill 8 is Texas’s newest attempt at preventing abortions. Set into effect in September 2021, it allows private citizens to sue those who help women get abortions after around 6 weeks of pregnancy. If this lawsuit is successful, plaintiffs get at least $10,000 in damages. This means that the law encourages private citizens instead of Texas officials and law enforcement to sue abortion providers, Uber drivers, family, friends, and basically anyone else involved in obtaining the abortion. Because of this, and the way that our legal system works, the law has proven to be very hard to challenge in court.
In December 2021, the Texas law was challenged in the Supreme Court and the decision was fractured. The majority opinion allowed suits only against state licensing officials, like the executive director of the Texas Medical Board, to take disciplinary actions against abortion providers who violate the Texas law.
However, this narrow path to challenge the law creates an easy fix for supporters of the bill. Amending the bill to generally bar state officials from enforcing it and instead only allowing private individuals to sue anyone who performs or “aids and abets” abortions will make it once again very difficult to challenge in court.
In Chief Justice Roberts’ partial dissent, he wrote that “it is the role of the Supreme Court in our constitutional system that is at stake” because the Texas law was a calculated attempt to undermine the authority of the Supreme Court. The loophole that the Texas lawmakers have used to write this law could set dangerous precedents. For example, if this law is eventually upheld fully, who is to stop more liberal states from using the same tactics to ban guns, as guaranteed by the second amendment?
Roberts also wrote that the law is “contrary to this court’s decisions,” including Roe v. Wade and “has had the effect of denying the exercise of what we have held is a right protected under the federal Constitution.” But with the conservative majority on the Supreme Court, frequent similar challenges to the law could have devastating effects on Roe v. Wade.
At an argument in a separate case last week, the court seemed prepared to uphold a Mississippi law that bans most abortions after 15 weeks, a decision that would be flatly at odds with the court’s abortion precedents, including Planned Parenthood v. Casey (1992). Though this case likely won’t be decided until June or July, if upheld and Roe v. Wade overturned, at least 20 states will immediately make almost all abortions unlawful by activating doormat bills. This would force many women who can afford it to travel long distances to obtain the procedure, and women who cannot to perform them by themselves unsafely.
References:
https://www.nytimes.com/2021/12/10/us/politics/texas-abortion-supreme-court.html
https://www.nytimes.com/live/2021/12/01/us/abortion-mississippi-supreme-court
https://www.nytimes.com/2021/10/01/podcasts/the-daily/texas-abortion-law-oklahoma.html