Abortion has always been the big prize. Republican-controlled legislatures passed bill after bill, knowing they violated Roe v. Wade. The goal was to create the perfect vehicle for a Supreme Court challenge, Joyce Vance writes.
, she said, “This bill is about challenging Roe v. Wade. … This is the way we get where we want to get eventually.”, involving a law that bans abortion after 15 weeks, that made it to the Supreme Court. That case will be heard next term.
Texas, not content to wait for Dobbs, built its so-called fetal heartbeat bill around a novel public enforcement ploy, hoping to elude judicial review by substituting ostensibly private action for the usual governmental restrictions. The law incentivizes would-be vigilantes to sue anyone who helped facilitate an abortion, from religious counselors to spouses and family members to people who loaned them money to Uber drivers, doctors, nurses and clinic staff.
The scheme is such a transparent violation of Roe that it would have been laughable a few years ago. But now, suddenly, it isn’t. The majority agreed the plaintiffs had presented “serious questions regarding the constitutionality of the Texas law” but then went on to ignore them, saying the case presented “complex and novel antecedent procedural questions on which they have not carried their burden” to show a likelihood of success on the merits.
A majority of the Supreme Court bought that disingenuous argument. In a bit of pearl-clutching worthy of Maine Republican Sen. Susan Collins, who played no small role in midwifing S.B. 8 into existence by, the court accepted defeat in the face of Texas’ protestations that it couldn’t be held responsible for its own law.
There is every reason to believe this malignancy will metastasize to other states. In permitting Texas to elude judicial review, the court has drawn a road map for every like-minded state legislature.
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