Analysis – Critics of Texas Abortion Act Warn Conservatives of Unintended Consequences

Author: Lawrence Hurley and Andrew Chung

WASHINGTON (Reuters) – While abortionists backed by the administration of President Joe Biden are preparing for Monday’s arguments by the U.S. Supreme Court in their challenge to an almost total ban on the Texas process, they found an unlikely ally: a right-wing gun rights group. .

A “friend of the court” record filed in the case by the Republican-ruled coalition for firearms policy against Texas illustrates how the unique structure of the law – enforcement by private individuals, not the state – has upset advocates of all kinds of constitutionally protected rights.

Some conservatives warn that similar laws could be drafted by liberals addressing issues important to the right.

A law written like the one in Texas to prevent courts from deciding constitutionality before it takes effect could be used, for example, to achieve constitutionally protected activities, including gun rights, religious practice, or freedom of speech. Abortion is protected by a 1973 Supreme Court ruling by Roe v. Wade, which recognized a woman’s constitutional right to an abortion and subsequent decisions.

“You can’t shorten the usual steps of judicial review for serious constitutional issues,” said Erik Jaffe, a lawyer who filed the minutes of the firearms coalition.

When laws restricting constitutional rights are passed, courts have a key role to play before they take effect, Jaffe added.

“It bypasses this debate. It says, ‘It’s a shame you can’t have this debate except … with my foot on your neck,'” Jaffe said.

The Supreme Court will consider whether the structure of the Texas law prevents federal courts from intervening to block it, and whether the U.S. government can sue the state for trying to block it.

The measure, one of a number of restrictive state abortion laws backed by Republicans passed in recent years, bans the procedure after about six weeks of pregnancy, a point when many women are not yet aware they are pregnant. There is an exception for documented emergency medical care, but not for pregnancies resulting from rape or incest.


The case reaches nine judges as the future of abortion rights hangs in the balance. On December 1, the court, which has a conservative majority of 6 to 3, is due to hear another major abortion case in which Mississippi seeks to overturn Roe v. Wade mississippi-asks-us- supreme-court-overturn-abortion-rights-landmark-2021-07-22. The Texas Attorney General has indicated he also wants Roe v. Wade .

The unique law of Texas is that the state has no executive role. Instead, anyone can sue abortion providers – whether that person has a personal stake – and potentially receive at least $ 10,000 in damages, critics compare the process to a reward for abortion providers.

At least three states are already considering legislation that would reflect the language of Texas law, including one in Illinois that targets arms dealers, said David Noll, a professor at Rutgers Law School in New Jersey, who delivered a short statement. which opposes Texas.

The Texas Citizens Enforcement Act does not mean that such laws can always evade judicial review. But in order to challenge them, someone would have to be prosecuted under the law first, and then the enforcement mechanism in defense would be tackled. Meanwhile, the fact that the law is in the books can cool the conduct in question. This is the case in Texas, where abortion clinics comply with the ban, as the Supreme Court allowed it to take effect -effect -2021-09-01 Sep 1

Lawyers who oppose the law have found possible analogies on other issues involving Supreme Court precedents. Laws that would allow people to sue gun owners and try to ban unrestricted independent spending in political campaigns are examples cited by the Biden administration in its challenge to the abortion law.

In both cases, “these statutes would also violate the constitution as interpreted by this court. But according to Texas theory, they could be enforced without prior judicial review, cooling of protected activity – and the effect of any successful constitutional defense in enforcing the procedure could only be limited. to this procedure, “the management wrote in court documents.

Legislators have passed other laws that allow people to make individual claims on contentious issues, including the rights of transgender people. But these are more similar to previous statutes that empowered people to sue for matters such as violations of environmental or civil rights.

In Tennessee, a law banning transgender students from using bathrooms that match their gender identity includes a provision that allows individuals to sue local school districts if they “encounter a member of the opposite sex” in the bathroom.

Some conservative and religious groups opposed to abortion have expressed little concern about the structure of Texas law, saying critics have exaggerated the possible consequences.

Walter Weber, an attorney for the U.S. Center for Law and Justice legal group that filed brief support for Texas, said nothing prevents abortion providers from challenging the law after they are sued.

“Abortion advocates who cry wolf can raise a lot of money and cover legislative and enforcement measures to encourage further support for abortion,” Weber said.

If Texas law is so blatantly unconstitutional, Weber asked, “Why are rafters so scared?”

(Reported by Lawrence Hurley and Andrew Chung; Reported by Karen Freifeld; Edited by Will Dunham)

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