SCOTUS Approves Texas' Secession from United States
The abortion law that went into effect in Texas yesterday is such a preposterously bold assault on the constitutional order that it seems more like something my seventh grade social studies teacher might have cooked up to teach us about the Supremacy Clause rather than an actual law enacted by an actual state. That sounds hyperbolic, but I’ve been trying to wrap my head around this law and I keep coming back to “Holy shit, they really passed a law that is an explicit end-run around constitutionally-protected individual rights.” The Supreme Court declined to stop it before it went into effect, with the majority writing last night that there isn’t anything they can do because the case presents “complex and novel...procedural questions.” This is so obvious as to barely need saying, but I’ll say it, nevertheless--the Court’s conservatives’ weak rationalization for inaction in the face of a “statutory scheme” that Chief Justice Roberts (in his dissent) called “not only unusual, but unprecedented” would be immediately overcome if the constitutionally-protected individual right in question were anything besides abortion. But it is about abortion, so for now until some undetermined but hopefully inevitable date in the future, the Court has told the states that they’re free to strip the citizenry of any of their Constitutionally-protected rights so long as it farms out enforcement to fellow-citizen bounty hunters. But hey, at least we all but outlawed abortion in Texas!
Even that amount of (what might seem like) slippery-slope hysteria doesn’t quite capture the awfulness of Texas’ new law, regardless of what one thinks about abortion--though what one thinks about abortion is actually quite germane to living in Texas at the moment. The law doesn’t just outlaw abortion as soon as a heartbeat can be detected, it also makes it illegal to “aid or abet” such a procedure, and it further makes it illegal even to intend to engage in conduct that could facilitate an abortion. For every instance of abortion-adjacent wrongthink you indulge in, you may be hauled into court by some vigilante citizen agent of the thoughtpolice and made to pay $10,000 for each thoughtcrime. But because the Court’s conservatives are so impressed or intimidated by the law’s apparently fiendishly clever non-state-actor enforcement scheme, we’re required to wait until some James O’Keefe-type starts suing people after tricking them into offering directions to the nearest Planned Parenthood before the law gets a proper review. But hey, at least we all but outlawed abortion in Texas!
Flag burning was recognized as Constitutionally-protected speech in the 1989 Texas v. Johnson decision, overturning laws in 48 states. Supreme Court inaction on the new Texas law suggests that a law that made flag-burning illegal--or even made intending to burn an American flag illegal--would not warrant an injunction and review so long as the enforcement of that law was led by citizen vigilantes seeking financial recompense in civil court. Under this novel enforcement scheme, why couldn’t California make handgun ownership illegal, as long as they deputized the citizenry to bring suit whenever someone was suspected of possession, instead of the police and district attorneys? Why shouldn’t Mississippi pass a law compelling anyone within its borders to praise Jesus before every meal or be subject to a $10,000 fine, so long as the agents of government enforcement were your friends, neighbors, and your own children, and not the Mississippi State Licensed Christ Cops?
The Texas law also seems to create a sort of new (if you’ll forgive me) “snowflake class” of “victim” out of the entire population--turning the whole of the citizenry into affronted and somehow legally aggrieved injured parties entitled to damages because an abortion is happening somewhere in the state. Imagine being able to sue McDonald’s and the Coca-Cola Company not because they made you fat, but because you don’t like having to look at all the fat people they made. Or, without even having to endure his sermon, you hear that a street preacher was declaiming the spiritual wages of life in the modern world on the campus quad--and you are then permitted to sue not just him, but sue the school for giving him the Free Speech Zone to speak in, sue the manufacturer of his wireless mic and speaker, and sue anybody who donated to his church.
These are only ridiculous hypothetical alternatives insofar as you believe that the right to an abortion is not actually a Constitutionally-protected right, of course. But Roe v. Wade and Planned Parenthood v. Casey are still the law of the land, so whether or not you believe they were rightly decided is entirely beside the point, as a matter of law. The Court majority here seeks to diminish the right to an abortion by failing to treat it as sacrosanctly as they undoubtedly would the right to free speech, the freedom to not exercise religion, and the freedom from compelled speech in the examples above. But hey, at least we all but outlawed abortion in Texas!
The United States Constitution is made entirely useless as a legal framework of recognizing individual rights if a state can simply decide that some of those rights do not exist in the confines of their state. The conservative majority is hiding behind prudence and restraint, but their inaction is pure cowardice. They seek to diminish Roe and the Constitutional right to an abortion, but have not the courage to actually take on the burden of overturning fifty years of precedent themselves. The Court would rather let Texas secede from the constitutional order than review a blatantly unconstitutional law that models a disturbing path for other states to rescind whatever individual liberties they don’t care for--but hey, at least we all but outlawed abortion in Texas!
(Header image stolen from unrelated thing here.)
