Column: Catching Air
The Supreme Court has taken a big step in rebuffing legal challenges to the Texas Heartbeat law that outlaws most abortions in Texas after about six weeks from conception. We need the Court to follow through later this year by overturning the so-called constitutional “right” to abortion when it hears the case of Dobbs vs. Jackson Women’s Health Organization.
The Texas Heartbeat Law was cleverly designed to avoid constitutional objections by giving private citizens, rather than government agencies, the right to enforce the law by suing anyone who aids an abortion. This takes advantage of the fact that Constitutional rights (or in this case a pseudo constitutional right to abortion) limit the powers of government but not private citizens.
Unfortunately, the Court’s decision was very limited, based solely on procedural grounds without deciding the constitutionality of the law itself. The Court said it was unable to make any Order against the state of Texas since the law’s private enforcement mechanism meant that there was no state official authorized to enforce the law. Nor was there any pending lawsuit yet against an abortionist to be adjudicated, and the Court was not convinced that it had any authority to issue an injunction against state judges asked to decide a lawsuit under Texas law.
Despite this pro-life victory, it is likely just a matter of time before the Court is presented with a procedurally proper challenge to the Texas law, and the private enforcement mechanism is not at all guaranteed to hold up.
As a general principle, it would be surprising if state legislatures are allowed to deputize private citizens to restrict constitutional rights (pseudo “rights” in this case) that the state cannot restrict directly. Otherwise, for example, what would stop a tyrannical state from promoting private lawsuits against religious practices or free speech that the state cannot outlaw directly under the first amendment, or lawsuits against gun ownership that the state cannot outlaw under the second amendment?
As we know, the Supreme Court has set some terrible precedents under Roe v. Wade and Planned Parenthood v. Casey, prohibiting state laws that impose what the Court calls an “undue burden” on women obtaining abortions before the baby’s “viability,” generally around 24 weeks from conception. Once procedural hurdles are overcome in the Texas case, the abortion industry will certainly argue from Roe and Casey that the Heartbeat law, even limited to private enforcement, imposes an “undue burden” on pre-viability abortions.
That is why the upcoming Dobbs vs. Jackson Women’s Health Organization case is so critical.
The Supreme Court agreed to hear Dobbs this fall in order to reevaluate Roe and Casey. Nobody knows what the Court will decide but we are hoping the Court will allow state abortion restrictions even before the baby is “viable,” perhaps as soon as there is a heartbeat, which would of course vindicate the Texas Heartbeat law. We hope the Court will decide that Roe and Casey were fundamentally wrong and there is no Constitutional right to abortion at all.
Meanwhile, the abortion industry will be pulling out all the stops, including possible efforts to pass a federal abortion law to preempt state restrictions. At some point, the Supreme Court needs to put a stop to this by recognizing, consistent with modern medical science and genetics, that unborn babies are legal “persons” with an enforceable right to life under the Fourteenth Amendment to the Constitution.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »