For five decades it has been established law that the Constitution guarantees the right to privacy and that right, as Justice Harry Blackmun wrote, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” It is also accepted law that abortion is legal in most states until the age of viability, between 24 and 28 weeks, or in some states 20 weeks. This spring the Texas legislature lived up to people’s expectations by passing a law that makes abortion illegal after six weeks, which is therefore unconstitutional.
The Legislature included a novel and reprehensible enforcement mechanism by leaving state officials who would normally be involved in the process and therefore subject to an injunction, out of the process. Instead, a mercenary army of citizens is now empowered to sue any doctor providing abortion services after the six week limit, or to sue anyone who “aids and abets” in the process; a parent, a school counselor, an Uber driver, for example. A successful plaintiff/informant would receive $10,000 plus court costs. So the state legislature passed a law that replaces state enforcement of the law with private enforcement, which is not how we usually do things in this country. The idea that a server at a restaurant who overhears a conversation about an abortion can sue the people involved is also an unusual approach to the right to privacy.
That brings us to the Supreme Court, which was asked to prevent the law from going into effect on September 1st. In a 5-4 decision the Court declined to do so. The majority’s one-paragraph statement said there are “serious questions regarding the constitutionality of the Texas law,” but they weren’t sure how to stop it from going into effect. The Supreme Court docket this fall already includes consideration of a Mississippi abortion ban after 15 weeks that may result in the Court overturning Roe v. Wade, returning abortion policy to the individual states. That is what the conservative majority on the Court is there for. The Court could have and should have put the Texas law on hold while its constitutionality was given due consideration and debate, and until the larger issue is considered in the Mississippi case. The Court failed by one (Trump appointed) vote to support the Constitution instead of the Texas legislature’s legal gimmick.
Twenty-two other state legislatures are under Republican control and are undoubtedly looking at the Texas bill and saying to themselves, “Why didn’t we think of that?” The Supreme Court decision only encouraged them.
No one should be surprised that the religious right is ignoring the science of fetal viability and legislating based on their religious beliefs, those of their constituents, and the faith-based institutions they represent. That’s how they got elected. But we should still feel some surprise that they would vote for something blatantly unconstitutional, and would create an army of informers to make the law difficult to challenge. They undoubtedly think "God" is on their side. It turns out that a majority of the Supreme Court is, including Justices who recently testified that their religious beliefs would not outweigh the law.
The Secular Coalition for America strongly opposes the abortion law now in effect in Texas and encourages the Supreme Court to take a reasoned, precedent-observant approach to the Mississippi case this fall, rather than allow another end run around the Constitution.
Our rights must be constantly defended against attacks from those who seek to reverse years of progress in favor of the supremacy of their religious beliefs. That is precisely our mission here at the Secular Coalition for America.