EDITORIAL: Texas abortion law and its citizens enforcement provision 'invite chaos to replace the rule of law'

Sep. 9—The BDN Editorial Board operates independently from the newsroom, and does not set policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com

Much has been written about the cruel Texas abortion law and the potentially dangerous precedent the U.S. Supreme Court set by allowing the law to go into effect last week.

We agree with the assessments that the law that bars any abortions when fetal cardiac activity is detected, which is typically around six weeks (when, by the way, many women don't even know they are pregnant), is essentially an unconstitutional ban on abortion in Texas.

That's one reason why the U.S. Supreme Court's 5-4 decision to allow the law to remain in effect until full legal challenges are heard, is very troubling. Perhaps thousands of Texas women will be denied their constitutional right to an abortion before the court weighs in on the essential question of the case.

We also recognize that this bill appears to be less about protecting children — Texas was ranked fourth worst in the nation for child well-being this year by KidsCount — than it is about denying women full control over their bodies and their reproduction.

There is a second dangerous aspect of the law: Its provisions aren't to be enforced by government officials. Instead, Texas lawmakers give citizens, anywhere in the world, the power to report and sue anyone in Texas who has or helps someone obtain an abortion. These civil actions, if they result in a successful lawsuit, can earn those who report them a bounty of $10,000 or more.

This civil action provision was likely written to avoid constitutional challenges to the law. Without government officials restricting women's constitutional rights, which were affirmed by the Supreme Court's Roe v. Wade decision in 1973, the drafters of the Texas law hoped it may pass legal muster.

Not so fast, say two prominent legal scholars, David Rosenberg and Laurence H. Tribe, who worked for the U.S. Justice Department. They cite a 1982 Supreme Court decision involving a Massachusetts statute that allowed churches and schools to prevent the issuance of liquor licenses to establishments within 500 feet of them. A church in Cambridge successfully fought a liquor license for Grendel's Den, a restaurant in Harvard Square.

The Supreme Court, by an 8-1 vote, overturned this scheme because the statute "delegates to private, nongovernmental entities power to veto certain liquor license applications ... This is a power ordinarily vested in agencies of government."

The statute "substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications," Chief Justice Warren Burger wrote for the court's majority.

This same logic — that government powers should not be delegated "private, nongovernmental entities," especially those that do not guarantee constitutional protections — should doom the Texas abortion law, the law professors wrote in an opinion column in the Boston Globe.

"To turn a blind eye to the blatant departure from its own precedent, as the [recent Supreme Court] decision did, is for the court to deny its own legitimacy and invite chaos to replace the rule of law," Tribe and Rosenberg, both emeritus professors of law at Harvard University, wrote.

Supreme Court Justice Elena Kagan made a similar argument in her dissent to the Sept. 1 ruling.

"Without full briefing or argument, and after less than 72 hours' thought, this Court greenlights the operation of Texas's patently unconstitutional law banning most abortions. The Court thus rewards Texas's scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State's behalf," she wrote.

This is a very dangerous scheme, which other states have already said they plan to emulate.

Many, including Attorney General Merrick Garland, already see this end run around the Constitution and have pledged action. But, federal action may be limited.

Sen. Susan Collins and some of her Senate colleagues, along with U.S. House Speaker Nancy Pelosi, are looking at another approach — codifying the right to an abortion in federal law.

"I talked with some of my colleagues who are working on legislation in the Senate which would codify Roe v. Wade and I would support such legislation," Collins told WGME.

Sen. Angus King, who was at an event with the Navy secretary and Collins in Bath on Wednesday, said he agreed with this approach.

Collins called the Texas law "extreme and harmful."

"I oppose the court's decision to allow the law to remain in effect for now while these underlying constitutional and procedural questions are litigated," she said in a statement.

The Texas law is extreme and harmful, for both is strict limits on abortion and its dangerous citizen enforcement mechanism. The sooner this terrible law is stopped — by the courts or through congressional action — the better.