Is what’s good for the goose is good for the gander? In letting stand Texas’s draconian new anti-abortion law, The Supreme Court allowed states to deputize almost anyone in the world as bounty hunters to go after and punish anyone in Texas taking part in a Constitutionally legal and protected act, namely performing, aiding, or abetting an abortion after 6 weeks of pregnancy.
In her blistering dissent to the Supreme Court’s inaction Justice Sonia Sotomayor called the Texas law “a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
If the Supreme Court wants to overturn 49 years of precedent in Roe v. Wade, it will have ample opportunity to do so the old-fashioned way – with lower court rulings, briefs, oral arguments and lengthy written opinions – next spring when it hears an appeal to Mississippi’s currently unconstitutional abortion law banning abortion after 15 weeks.
The Court’s non-decision in allowing the Texas law is devastating for the rights of women to control their own bodies. But it is equally devastating to the rule of rule of law in America, itself another blow by Republicans at the fundamentals of democracy.
Allowing the Texas law to go into effect immediately while it slowly winds its way through the courts turns every citizen into a potential Stasi-style informant and bounty hunter against their neighbors who are otherwise performing legal and Constitutionally protected acts.
But the Supreme Court’s 5-4 conservative majority may have been too clever by half. If Red states can evade judicial review by letting civilians instead of government be its enforcers of otherwise questionable, illegal and unconstitutional laws, then so can Blue states.
California, say, could pass a law giving anyone the right to sue any Californian who is unvaccinated and be entitled to receive $10,000 or more plus legal fees from each unvaxxed person.
It could virtually Xerox Texas’s anti-abortion law and just substitute “failing to be vaccinated against Covid-19 with a vaccination that has received full or emergency use approval from the FDA” for Texas’s “performing, aiding, or abetting an abortion after 6 weeks.” If the Supreme Court is consistent with its Texas abortion ruling, the initial effectiveness of such law couldn’t be prevented by any court.
Similarly, New York, say, could pass a law giving anyone the right to sue any New Yorker who possesses a gun and collect $10,000 or more plus legal fees.
The Supreme Court’s 2008 decision in District of Columbia v Heller holds that an individual has the Constitutional right under the Second Amendment to possess firearms independent of membership in a state militia. Although many have criticized Heller, it is the law of the land and any normal attempt by New York to outright ban firearms would be facially unconstitutional.
But if New York followed the Texas model of turning over enforcement to individual bounty hunters and if The Supreme Court is consistent with its decision not to hear the Texas abortion case, then gun-rights advocates would have no legal recourse available to challenge the immediate effectiveness of the law in court.
So here is a message to Democrats: Stop bedwetting over the Supreme Court’s horrendous decision to allow the Texas anti-abortion law to go into effect. Rather, use the legal opening provided by the right-wing Supreme Court majority to enact Democrats’ goals without judicial review. In states where Democrats control the legislature, governorship and courts, immediately call special sessions and pass laws deputizing individuals to sue the unvaccinated and collect $10,000 or more plus legal fees.
Of course this is not the way politics should normally be done. Some may argue that Democrats shouldn’t stoop to the level of Republicans in evading the law through procedural tricks now allowed by the Supreme Court. But, as it’s been often said, don’t bring a knife to a gun fight.
Congressional Democrats’ response to the Texas decision is to make outraged statements and loudly proclaim that they’ll legislate Roe v. Wade into law. Since they know such legislation will never become law because of their refusal to end the filibuster, this is little more than a sop to the base to make it seem as though Democrats are doing something. Better to turn the Republicans’ own weapons on the Republicans and use the Supreme Court’s decision to accomplish important goals like vaccine mandates and gun control.
This will help expose the absurdity — indeed lawlessness — of the Supreme Court’s procedural decision in the Texas abortion case, with the added benefit of getting more people vaccinated.
Democrats, should stop sending outraged tweets and press releases about the evils of the Supreme Court’s Texas abortion decision, and drafting legislation that has no hope of passing in the Senate. Instead, actually use that political power at the state-level to bring meaningful change.
Mіlеs Mоgulеscu
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