A Letter from Austin #7: The Supreme Court Strikes Back

The Nine Take Up Texas’s SB 8

It’s chilly here in Austin, and we think we like it. After the seven-month sweatfest that is a Central Texas summer, it’s finally time to pull out the shackets (a specialty of mine) and leather and attempt to look fashionable in something other than beat-up blue jeans and a chili cook-off t-shirt.

Covid worries this week? Not so much. The numbers continue to drop.

Unemployment? The latest jobs report is promising.

The stock market’s up, at least for now, and Congress has actually passed a sizeable infrastructure bill.

The biggest topic of conversation here has been the continued fecklessness of the Longhorns football team, which has dropped three straight games they could easily have won, and the Texas Legislature’s creepy anti-abortion law.

Readers of these letters will recall that the Fetal Heartbeat Bill, also known as the Rapist Reproductive Rights Act, because it contains no exemption for pregnancies caused by rape or incest, forswears any attempt by the State of Texas to regulate abortion. Instead, the law deputizes private citizens to file lawsuits against individuals who assist pregnant woman to obtain the procedure. It’s basically made a posse out of the GOP’s rank and file — and, for the moment, the law has pretty much put Texas abortion providers out of business.

The Supreme Court heard arguments on the law this week, and, as might be hoped, the justices seemed skeptical. This is natural. The law is intended to rob the Supreme Court of the ability to pass on the central question here — is it constitutional to outlaw abortion? — under the theory that the State of Texas is not actually prohibiting anyone from doing anything. Rather, private citizens, not the state, are doing the enforcing.

It’s a clever argument, and, as one might expect, it was thought up by clever Republican Party lawyers. But asking the Supreme Court to uphold a law that would essentially rob the Supreme Court of its authority to pass on important constitutional issues is not a promising litigation strategy. Justice Kagan was among the justices quick to question Texas’s Rube Goldberg-like anti-abortion machine. If a state can get away with infringing on a constitutional right by deputizing a politically motivated portion of its citizenry to do the dirty work on the state’s behalf, “Essentially, we would be inviting states — all 50 of them — with respect to their own preferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. There’s nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don’t like — go ahead.”

While I am frequently wrong about how the Court will decide a case, I’m going to put myself out there again and predict that the Texas statute will be struck down. It may not matter much in the long run, as the Court has a more salient case on the abortion issue coming up soon. But I’d still like to see the Texas law found wanting. As I’ve written before, it’s a shabby, cynical piece of lawmaking that attempts to set one segment of the population against another. It’s a law more suited for Communist China or the old East Germany than for Texas.

According to the Texas Tribune, some 46% of Texans disapprove of the way the Legislature handled abortion policy in the recent series of regular and called sessions, while only 39% approve. I’m surprised the disapproval numbers aren’t higher. Whatever your feelings about abortion — and I’m not a fan of the procedure —it seems clear that this law is not the right way to police it.