Why, with more than 820,000 dead from COVID, and nearly 500,000 new cases yesterday alone, and numbers going up daily? Why, with the assault of the Capitol hanging over us like a black cloud? Why, with voting rights under attack in more than half the states in the Union? Why, with He Who Shall Not Be Named broadcasting his big lie about the last election and being believed by about 2/3rds of his party? Why, with global warming continuing to cause deadly weather events like the Kentucky tornados and fires in the West?
Why? Because the Supreme Court’s reaction to the Texas abortion law is the single most dangerous, lawless act of a court in this country in modern history, and there’s more of the same to come. It isn’t only abortion rights that are threatened by the court’s failure to act expeditiously on the Texas law. Law prevails over the rule of the mob, the ends do not justify the means, we are a nation of laws not of men – in fact the entire edifice of our laws is under assault with no end in sight.
You remember what the Texas law did, right? They essentially negated the Constitutional right to abortion in the state after a so-called fetal heartbeat can be detected, about six weeks into a pregnancy, and established a system of vigilante justice to uphold the law. They specifically subtracted the ordinary administration of the law and justice from enforcement of a law passed by the legislature of the state and purposefully assigned it to a mob. Not a single official of the State of Texas is to be involved in enforcing the abortion law: not the executive office of the governor, not the attorney general, not the state-wide system of law enforcement officials such as the State Police, county sheriffs, or local prosecutors, not even the officials overseeing the system of strict state regulations which apply to abortion clinics.
No, enforcement of the Texas abortion law has been left up to citizens – any random citizen of the state of Texas or in fact the citizen of any state at all – are given the power to sue in state court anyone who aborts a fetus after six weeks or aids and abets in that act. The lawsuits can be filed in multiple jurisdictions, and winning such a lawsuit – by a preponderance of evidence, not with evidence beyond a shadow of doubt – results in an award of $10,000 plus legal costs to the victor. In effect, the Texas abortion law deputizes not only the state’s citizens, but the citizenry of the entire country as bounty hunters and gives them the power of law enforcement without a badge, without training, without legal acumen or investigatory expertise. The state of Texas turned its legal system over to a mob, and the Supreme Court, at least so far, has said it’s fine with them.
Much has been written about how laws similar to that of Texas could be passed in other states to abrogate other Constitutional rights such as the right to own a firearm, or to write or speak freely, or to be free of unreasonable search and seizure of your property, or even your right to equal protection under the law as put forth in the 14th Amendment, which would apply to laws against segregation and other racial discrimination. But it’s worse than that. The Supreme Court, by allowing the Texas law to stand pending the adjudication of a lawsuit filed against it, has overtly and willfully stripped itself of the powers it has exercised under Marbury v Madison, decided in 1803. That case interpreted the Constitution’s “supremacy clause,” Article VI, Clause 2, as giving the “Judicial Department” the power to say what the law is, and to strike down laws that are unconstitutional, specifically state laws that conflict with federal laws.
By allowing the Texas law to stand, the Supreme Court has permitted the repeal of the constitutional right to abortion by the state legislature using a state law that openly conflicts with the constitution as interpreted in Roe v Wade and Planned Parenthood v Casey. If those two decisions can so blithely be set aside, any other decision of the court such as Brown v Board of Education or Miranda v Arizona can be similarly dispensed with. This has been the dream of “states rights” proponents since before the Civil War.
The same “supremacy” of state laws over rights granted under the Constitution will come to pass if the Supreme Court overturns Roe v Wade as experts are predicting might happen next year. This is a threat not only to abortion rights, which have been protected by Roe for nearly 50 years, but to other rights that were recognized as constitutional by other decisions such as Griswold v. Connecticut, which was the first case to recognize a right to privacy in overturning a state law against contraception. Many experts predict that a case will be filed against a state contraception law challenging Griswold, and if the Supreme Court finds that states may ban contraceptive devices in the same way they may ban abortions, the court may allow other challenges to laws recognizing a right to privacy that would include allowing the return of state laws banning “sodomy” and marriages between people of the same sex.
The Supreme Court is standing at the top of the proverbial slippery slope and they have strapped on a set of well-waxed skis. How far we slide into a morass in which states can overturn constitutional rights at will and use wild-ass mobs of right-wing vigilantes to help them do it is a question I’m afraid we will be revisiting for years to come. The Republican wing of the Supreme Court isn’t conservative. They are radicals bent on a realignment of laws to protect those who are wealthy, white, and male and no one else.