Okay, it's been several years since I've actually blogged. For a short while, I thought about starting a podcast (because I'm a white guy, and that's what we do), but I couldn't figure out how you actually post audio files to be a podcast because. . .well. . .fuck, I'm old. Also, I have young kids.
But with the recent decisions of the US Supreme Court regarding Texas SB8, the law banning abortions after 6 weeks, and the recent decision allowing this law to go forward because procedurally it's weird. Let me say the following - despite what you may or may not think about abortion rights, this law, and the Supreme Court's determination that it cannot enjoin the application of this law should be terrifying to everyone.
Here's why: as if this time, abortion rights are still technically protected by the U.S. Constitution. Had Texas utilized a traditional enforcement mechanism - criminal prosecution - the Supreme Court would have to determine whether or not abortion rights are still constitutionally protected. Since Kavanaugh is a chickenshit, and the other conservative Justices don't give a shit, the Supreme Court sidestepped the issue, stating that it cannot hear a case where private actors are tasked with enforcing the law. That's. . .actually worse than just overturning Roe.
Under the Texas statute, all abortions after being able to hear the fetal heartbeat are prohibited. That is effectively 6 weeks from the date of the woman's (or, if the person is trans or nonbinary, the child bearing person's) last period.* Anyone who induces or performs the abortion, anyone who aids or abets the abortion, and anyone who intends on aiding or abetting the abortion is liable to anyone - literally anyone in the world - for a statutory minimum damages of $10,000, plus actual damages (if they exist), and attorneys' fees and costs. If the plaintiff loses the case, they are not liable for anything.
The scary part here is that it encourages all kinds of mischief. Give someone a ride to Planned Parenthood? That's $10,000 plus attorneys' fees and costs (likely over $10,000), even if that person doesn't get the abortion. If Google allows Texas women to conduct internet searches for "how can I get an abortion?" Google, and all of its employees, would likely be liable for aiding and abetting.** If a hospital performs a D&C post miscarriage and doesn't make it very clear that it was a miscarriage (medically known as a SPONTANEOUS ABORTION), that's $10,000 of liability for everyone in the hospital. Now, the general policy effects are horrific - typical medical services for child bearing people would be severely curtailed for fear of litigation from all over. But what's especially concerning is the fact that the Supreme Court has given tacit approval to this enforcement mechanism.
That's because if this enforcement mechanism is allowed to stand, then any state could take away constitutional rights (and remember, abortion is still technically a constitutional right) by utilizing this enforcement mechanism. California, for instance, could ban all criticism of Gavin Newsom and even allow people to sue others for intending to criticize Gavin Newsom. Missouri could ban the practice of Mormonism, and allow random people to sue people for practicing Mormonism, intending to practice Mormonism, or aiding and abetting people intending on practicing Mormonism. Hell, a state could outright ban Black people from voting so long as they use this mechanism.
In other words, by punting on the question of whether abortion is a constitutionally protected activity based on this enforcement mechanism, the Supreme Court just opened the door for states to take away every other Constitutionally protected right. Now, you could say that when this issue does come up in the future for the First Amendment, or whatnot, that the Supreme Court will decide differently. And that's certainly possible, but the Supreme Court doesn't hear every case - the lower courts do. And all of them will be bound by this decision.
And there's more - the Supreme Court just held that to pursue a case in federal court, whether under diversity jurisdiction or not, the plaintiff has to plead and prove concrete harm - that the harm alleged in the complaint resulted in the loss of money or property, or in the loss of a substantive right. What this means for Texas is that all of the cases will be held strictly in Texas state courts until after the Texas Supreme Court hears the case. Similarly, any bounty statute of the sort Texas has implemented found in any other state would never see the inside of a federal courthouse until, maybe, the Supreme Court decided to hear the case. Now, for a state like California, that's not terrible as the Courts here are pretty good. But in other states?
The long and short of it is that this Court is looking to do real damage to the rule of law in this country and we're just at the beginning.
*Just as an aside: the earliest a person would ever know they're pregnant is four and a half weeks after her last period, and even then, only if she's taking a pregnancy test every single day. Even then, the tests at that stage are completely unreliable. For the vast majority of women, they aren't aware that they're pregnant until week 5 or 6, so this effectively bans all abortion.
**If I were Google's General Counsel, I would be EXTREMELY concerned about this eventuality.
