Texas's Heartbeat Bill S.B. 8 is Bad Law

      So, I've been loosely following the status of Texas's "Heartbeat" bill S.B. 8 since it was passed. For the uninitiated, S.B. 8 is the Texas statute that allows anybody (like, literally anybody) to sue anyone who performs, aids, or abets an abortion in the state of Texas after the point when heart activity can be detected in the embryo. I'm going to assume if you're reading this, you're already familiar with the law. It's kind of been everywhere, all over the news. 

     I'm just going to throw this out there. This is a bad law. Even if you consider yourself pro-life, this is just bad law. I've thought this from the beginning, and after listening to the Supreme Court oral arguments yesterday, in both Whole Women's Health v. Jackson and United States v. Texas, I'm even more convinced this is bad law. 

     Now, if you have not been following the legal case, you might be shocked and surprised to learn that the supreme court cases mentioned above are not actually about abortion. They are actually cases about jurisdiction and the law. While the topic of abortion was referenced in oral arguments, it was not the topic of discussion.

    You see, S.B. 8 was crafted specifically to make the law exempt from federal judiciary review. The way the federal courts operate, they cannot actually remove or nullify state laws. Rather, what they can do is issue an injunction against state officials, banning them from enforcing the state law. The court tells the enforcing state agent what they can and can't do. 

     When S.B. 8 was created, the Texas legislature specifically said that state officials cannot enforce the law. Rather, it allows private citizens to file suit against individuals who perform, aid, or abet abortion. Because nobody in the state government is actually enforcing the law, the federal courts have nobody to injunct. So, even though laws limiting abortion in the first trimester are clearly unconstitutional under current precedent, the courts are powerless to enforce that precedent. 

     And BAM! Just like that, Texas created a legal loophole that allows them to . . . well, it allows them to effectively ban abortion, but it also allows them to, in theory, ban anything. Free speech. Gun rights. Freedom of religion. You name it, a state can ban it. All a state has to do is say "We are not enforcing the law, our people are." Suppose a state created a law that said anybody can sue a church for holding a service during a pandemic. Under Texas's theory, the federal courts would have no power to prevent this law from going into effect. 

     And this is why the court needs to strike down S.B. 8. Justice Roberts was the one conservative justice on the court who had previously indicated he would not allow this law to go into effect. Based on oral arguments, Justice Kavanaugh and Justice Barrett also seemed like they might follow suite. Justice Kavanaugh in particular kept returning to gun rights and the states' ability to nullify the second amendment. A gun rights group had actually filed a brief opposing Texas's law, and Kavanaugh seemed to take their points very seriously. 

     In the end, even if you support Texas's opposition to abortion, the way in which they have tried to skirt a constitutional challenge to their law should worry everybody. If they win, if the Supreme Court says this law cannot be reviewed by the federal courts, your constitutional rights will be more like constitutional suggestions. 

     The broader issue of abortion is its own thing. Later this term, the court will be hearing a case challenging Roe v. Wade. The current issue of S.B. 8 will likely have no impact on the outcome of abortion rights. But if Texas wins this current court case, then there is far more than abortion at stake.