Before You Fist-Bump about that Texas Abortion Ban

This piece appeared in newspapers — The Northern Virginia Daily (9/18) and the News & Advance of Lynchburg, VA (9/19) — in my very red congressional District (VA-06).


I’m imagining there are a lot of Republicans who have been fist-bumping jubilation about the success of the Texas Republicans with their measure that effectively bans abortion in Texas.

But I suspect that they would not feel so jubilant if they saw what else is going on here—something actually far more important than the issue of abortion.

(More important, at least, to anyone who really cares about the Constitution and the rule of law, which means, anyone who cares about what America has always been about.)

Let me put it this way: If we are to tolerate what the Texas Republicans and the 5-Republican-appointed Supreme Court justices teamed up to do here, none of our constitutional rights are safe. With the same set of maneuvers, any state could do to any other constitutional right – like  “the right to bear arms” — what the Texas and Supremes’ Republicans just did to the right to abortion.

The crucial thing is this: right now, both rights are part of the Constitution. And they remain so until the Supreme Court decides otherwise. It is unconstitutional on the face of it to strip American citizens of any of the rights to which the Constitution and previous Supreme Court decisions entitle them.

Yet, the Texas law blatantly strips women in Texas of that right, and the Supreme Court let that law go into effect.

The Republicans in Texas seem to have teamed up together with the five-out-of-six Republican-appointed Justices who formed the Court majority to violate the Constitution.

The Court green-lighted an effort to overturn the law of the land without going through the constitutionally required process. To revise the meaning of the Constitution, what is required is that it go through a judicial process at the heart of any system of Justice: that the issues of the case be publicly argued before the Court, and that a decision be handed down by a Supreme Court majority who articulate to the nation what constitutional/legal principles they’ve declared will govern the matter.

That process is essential to the rule of law in America.

But with this Texas scheme, on which the GOP-5 on the Court signed off, nothing has been argued. Nothing has been written. No principle is visible.

No one — regardless of their beliefs about abortion — who believes in the American way should celebrate the un-American way that Americans have been stripped of a right that they still have according to the existing “law of the land,” and that they are entitled to have respected and protected so long as the law remains as it is.

And everyone should be alarmed that we have five Justices on the Supreme Court who were willing accomplices in an evasion of the rule of law, a naked flexing of partisan power, the old principle that “the strong do what they can,” with no regard for the rights of the weaker party.

(And “the strong do what they can” is the very definition of a world without Justice.)

But there’s more. The law these Supremes green-lighted was not only blatantly unconstitutional. The law was also designed to strike a blow to a central mission of the Supreme Court as a branch of the American government. Namely, to be an end-run around “judicial review” – by which the Court protects the Constitution against constitutionally forbidden laws, and protects American citizens from having their rights trampled by lawless state power.

(It’s OK for a state or Congress to pass a law that challenges existing constitutional provisions. But it ought not take effect before the Court reviews that challenge, and decides those provisions should be changed.)

But the Texas law was designed to evade such review by making it impossible – or at least very difficult – for someone whose rights have been violated to seek justice, as is their basic American right.

That evasion is the whole purpose of the law’s “bounty hunter” or “vigilante” set-up. The idea is that farming out the law’s enforcement to “private” individuals, the citizens who want to challenge the law will have no target to sue, and thus no way to get an unconstitutional law struck down.

(If permitted, this evasion also could equally be used against “the right to bear arms”: “bounty hunters” could bring suit to punish gun-owners and put huge obstacles in the way of their getting their currently-recognized constitutional rights restored.)

I don’t think that attempted end-run will succeed, because several past Supreme Court decisions make it pretty clear that those “bounty hunters” are to be regarded not as private entities but as acting “under color” of the state. So the state can indeed be sued and (eventually) citizens’ rights get their fair hearing.

(But then, that same 5-Justice majority who have just trampled on the rule of law in such fundamental ways could simply ignore that settled principle.)

But regardless of the outcome, what’s most important to see is what this gambit shows us about the kind of “American Justice” the Republican majority on the Court is prepared to give us.

Those fist-bumping over the recent “pro-life” victory should consider what else that “victory” means:

  • What does it say about those five Republican-appointed Justices on the Supreme Court that they chose to be accomplices to this transparent attack on our constitutional order (and would show so little respect for the institution on which they have the privilege to serve)?
  • And what does it say about the Republican Party that it would work for the decades to build a Supreme Court majority of such Justices?
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