Opinion: A Dangerous, Odd and Unconstitutional Texas Law

OPINION

“It’s legal because I want it to be.” Louis XIV

The new Texan anti-abortion law is unconstitutional as its purpose and effect is to impede, if not completely prevent, the free exercise of a Texan woman’s right to abortion under Roe vs. Wade. It’s also unconstitutionally vague, arbitrary, overly broad, unreasonable, and dangerous.

In 1973 the US Supreme Court ruled in the Roe v. Wade that the implied right to privacy of the US Constitution under the 14th Amendment makes abortion legal for women.

Abortions in the first three months of pregnancy are legal, but abortions performed after that time could be more regulated or restricted, with exceptions if the mother’s health is at risk. Later Supreme Court cases said a woman’s right to terminate a pregnancy could be further restricted if the fetus was found to be viable outside the uterus and late abortions were limited.

Enter the Texas Heartbeat Act, also known as SB 8, which the Texas Legislature passed and signed Governor Gregg Abbott in May 2021.

Interestingly, the Texas Heartbeat Act, tacitly recognizing previous US Supreme Court rulings confirming a woman’s right to abortion, allows anyone, including doctors, clergymen, psychotherapists, to be sued for abortion aiding and abortion for up to four years after the prohibited act , Health insurers, taxi drivers, Uber & Lyft drivers etc, but not against the woman who has an abortion.

Significantly, and perhaps knowing that this law will be extremely difficult to enforce, Texas lawmakers have created several affirmative defenses for anyone charged under this law.

In particular, the defendant is exempt from the application of the law if he proves that an appeal against the defendant “prevents a woman or group of women from having an abortion” or if such an order “constitutes a significant obstacle in the path of a woman or a group of women seeking an abortion. “

A low bar, indeed – although the malevolent intentions of the law are clear, as a prevailing defendant cannot receive attorney fees and costs, a prevailing plaintiff can.

The law also provides that these affirmative defense statements will not be available to a defendant if “the United States Supreme Court Roe v. Wade, 410 US 113 (1973) “.

Also worrying is that the law allows lawsuits against anyone who “intended” to perform an abortion without a “medical emergency” after 6 weeks of fetal heartbeat or “intended” to support and encourage the practice of such an abortion. Certainly the punishment of thought and intention where there is no action is dangerous and cannot be constitutionally upheld.

However, the signing provision of Texas law alone should cause most Republican and Democratic judges and judges to stop enforcing this vague, arbitrary, exaggerated, unreasonable, dangerous and unconstitutional law: representing everyone on planet earth to sue someone who does or supports and supports a legal act in Texas (an abortion under Roe).

Imagine what the Wall Street Journal editorial board does when a state legislature decides to bring any other lawful activity, such as an otherwise authorized person buying a gun, to civil action by anyone on earth do?

What if the law required strict liability for such behavior and a minimum premium of $ 10,000 for anyone who helped purchase the gun?

I’m sure blue states are already considering enacting such unconstitutional anti-weapon or similar law to force the US state to take Texas unconstitutional law to court. Of course, if a state passed such a law as the Wall Street Journal describes, the majority of the US Supreme Court would immediately reject the law.

But to come back to the recently passed Texan anti-abortion law, there is also a huge Health Insurance Portability and Accountability Act (HIPPA) and other privacy barriers that will hinder or deny enforcement of that law – which the courts may not approve of fishing expeditions in the medical records of Americans. This will prevent, or completely refuse, plaintiffs and their attorneys from obtaining the evidence they need to prove that someone performed or assisted and facilitated an abortion after 6 weeks of pregnancy.

The latest Gallup poll shows that 58% of Americans oppose this Texas “fetal heartbeat” bill and only 37% of people support it, with 56% supporting the continued legitimacy of Roe vs. Wade and 41% opposing it.

Of course, the currently constituted US Supreme Court could simply overthrow Roe completely in the coming weeks.

As in Texas, elections have consequences.

Steven R. Rothman represented New Jersey in the US House of Representatives from 1997 to 2014.