20210908-OPN-texas cartoon

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Whatever your views on abortion, there can be no debate that the new Texas legislation limiting the procedure has one laser-focused purpose: to get around the settled strictures of Roe v. Wade.

This is a lousy and thoroughly un-American way to make laws. It’s indicative of a deeply troubling trend that goes well beyond abortion law, and its rise will come back to bite this riven nation in ways it has yet to understand.

The crafty Texas legislation (or “novel” in Supreme Court parlance) prohibits the abortion procedure in that state once medical professionals are able to detect cardiac activity, colloquially a heartbeat, in the fetus. This is typically at around six weeks of pregnancy, and many defenders of a woman’s right to an abortion have correctly noted that many women do not even know they are pregnant at that point, let alone have had time to make an oft-wrenching decision.

Therefore, it becomes impossible both to have that procedure and comply with the Texas law, which the U.S. Supreme Court allowed to take effect this week by declining to stand in its way. And that is, of course, the point of the legislation.

But the deviousness of the law is found in how it essentially insulates the state of Texas from enforcing its own legislation and thus going to head-to-head with the powerhouse precedent of Roe v. Wade.

As Chief Justice John Roberts noted in his dissent to the court’s 5-4 decision to allow the law to go into effect, at least for now: Texas “essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime. The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place.”

Got that? To put it in clearer terms, any private citizen, Texan or not, woman or not, can now choose to sue someone undergoing an abortion, or anyone helping her do so, even down to the person giving her a ride to the clinic. If they win, they get at least $10,000 in damages, and the law is structured so that it is very costly for abortion providers to defend against, meaning that many will choose instead to close — which is, of course, the thinly veiled point of the legislation.

But let’s reiterate: These are the rules made by the state of Texas. And if Texas is going to make rules, it should enforce them itself. Only cowards pretend to wash their hands.

Many people of principle are opposed to abortion, often on religious grounds. But all people of such conscience should ask themselves: Is this zero-sum approach to legislation really how those who would limit or ban this procedure want to make laws?

Frankly, this is vigilante legislation, lawmaking by duplicitous proxy.

Imagine if there were a Texas law outsourcing the law enforcement of robbery or murder to citizens and giving them a bounty to do so. Citizens would be outraged. That is the job of the state, they would say. That is why we have a criminal justice system. A civilized society enforces rules. It does not make rules that it says it has no intention of enforcing, lest it undermine all its other rules.

Whatever you think of abortion, this way of going about things is pernicious. And it can be used, illiberally, by conservatives and progressives alike.

For those reasons, we agree with the Roberts dissent when he said his sharply divided court should have issued a stay and stopped the law from going into effect. This was, after all, a piece of legislation that thumbed its nose at the Supreme Court, and that alone should have stopped the conservative members of the court from going along, even if Roberts and the conservative majority made it pretty clear that the constitutional issue was not yet settled in this matter and was likely to be the subject of further debate.

But there is profound principle at stake right here.

One of the biggest problems this nation faces, on both sides of the political spectrum, is growing disrespect for the rule of law and democratically ordained outcomes. One consequence is local legislation crafted specifically to get around the work of higher courts.

Conservatives could justly point to how local liberal jurisdictions often refuse to carry out federal immigration policy, even though it’s the law of the land. You can see this philosophy at work in how Congress has punted on the eviction moratorium, making its continued existence a patchwork kind of thing, even though all Americans, landlords and tenants, have been affected by the COVID-19 crisis. And the victory-over-principle temptation raises its head when it comes to redistricting, too.

At the most fundamental level of this democracy, something is broken. A nation that once would come together to vote on elected representatives, empowering them in the selection of the members of the judiciary, and would respect the will of the democratic majority even in a loss, is now focused on trying to rig the system any way it can. Outcomes are everything now.

This law, and the decision to let it stand, even for a while, undermines any and all respect for our legal system, which is no doubt why Roberts wrote his dissent, joining the more liberal members of the court, whose focus was more on the threat to the right to choose to have a safe, legal abortion.

This law is too cynical, too expedient, too sly. And, as such and for reasons beyond, it’s profoundly unfair to the women of Texas.

This whole country can do better.

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