SADOW: Texas’ Abortion Law Is Great, But Not Clonable For Louisiana

It was brilliant construction and strategy, but there’s no reason for the Louisiana Legislature to rush to special session, or even wait and do it during the 2022 regular session, to implement a potentially life-saving law like the Texas Heartbeat Act.

The law prevents, except for cases of medical emergency, abortion of a fetus with a detectable heartbeat, often in as few as six weeks after gestation. However, state officials can’t enforce it. Instead, in state court any private citizen may engage in a civil action against an offending abortion provider, with damages of at least $10,000 an incident plus fees against those aiding and abetting in the act, but not against the female undergoing termination of the human life inside her.

Passage of the law basically set a trap for anti-life special interests. Because the matter goes to state court, it allows for a much broader assignment of standing. And as it doesn’t involve the state, no government officials may be enjoined in executing the law. Essentially, it makes abortion mills police themselves. And when the law took effect Sep. 1, that’s what those in Texas did by turning away clients.

Plus, as it turns out, it prompted them to fumble a legal strategy that sent a requested injunction against it to the U.S. Supreme Court. In essence, their last-minute legal maneuvering focused on trying to prevent government officials and a single private citizen from enforcing the law. The Court’s legally sharper minds batted that away easily, noting the defendants had nothing to do with the proposed law’s enforcement and so refused an injunction against it and, even so, there was nothing in the plaintiffs’ argument allowing for expansion of injunctive coverage against all government officials who might be involved in some way in any civil actions from the law.

Mirroring the larger debate over abortion regulation, dissenters created law and objections out of thin air with fiat replacing constitutional justification. Yet the issue was purely procedural, not substantive in the sense that presumed constitutional rights to abortion were overturned, with the majority noting this and signaling this approach would touch on the substantive issue of abortion if, as the law permits, bringing up case precedents on it in a challenge to it. The majority even noted that “[t]he applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue” and “this order is not based on any conclusion about the constitutionality of Texas’ law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

This didn’t stop the political left, cheered on by Democrat Pres. Joe Biden, to go off the rails in asserting the end of “abortion rights” had come. (Although Biden actually got it right that these kinds of laws could create chaos, many of which already are on the books, unless the Court changes its view on standing.) The ruling did nothing of the sort, but instead invited a challenge by an affected party on constitutional grounds, such as triggered by a Texas abortionist killing a fetus with a heartbeat and then someone bringing a civil action as a result. It then all hinges on whether as a part of this the Court will overturn the shoddy legal precedents set by Roe v. Wade and Planned Parenthood v. Casey that created out of nothing a hidden constitutional right to abortion under certain circumstances, rather that the document’s clear placement delegating this matter to the states.

Using this law as a vehicle to do so seems highly unlikely. The Court has other more suitable cases before it to accomplish any reaffirmation or redefinition of this alleged right. Thus, challenging a suit brought under it likely in the near term would allow bringing up precedent as an affirmative defense, thereby invalidating the law on constitutional grounds – for now. Months (if not years) later, the Court then may rule on the substantive issue affecting precedence that could wipe out the manufactured “right.”

Sending through Louisiana an emulation of the Texas law likely would do nothing, for by the time policy-makers got around to it that law likely will be on hold and everybody awaiting a Court decision on the substance of its abortion regulation jurisprudence. Plus, the state already has ready to go a constitutional passage protecting life if and when that happens. Therefore, no lives likely would be saved by quick action, negating the need to act quickly.

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