Friday, September 3, 2021

The End of Jurisprudence

Or why the new Texas abortion law is terrible news for everyone.

This May, Texas passed Senate Bill 8, banning all abortions performed after a fetal heartbeat can be detected in the state of Texas, effectively banning all abortions after around six weeks of pregnancy.  This is now the strictest abortion law in the land.

The new law passed on May 19 to take effect on September 1, but had its share of legal complications.  The matter was ultimately raised to the Supreme Court, who delayed their decision regarding whether it would hear the case until after the law went into effect.  The Supreme Court officially refused to hear the case on September 2, 2021.

The Supreme Court's delay was purportedly tied to the law's novelty.  The law does not criminalize the abortion procedure; rather, it makes it an issue of civil liability.

And whatever your underlying feelings on abortion, this is why everyone should be afraid of this law.

For the explicitly removes enforcement of the new law from the hands of the executive branch of government (police, district attorneys, etc.), and places it squarely in the hands of the general public.

We've created abortion vigilantism.

And have upended 250 years of jurisprudence.

"Any person, other than an officer or employee of a state or local governmental entity in this state, may
bring a civil action against any person who:

(1) performs or induces an abortion in violation of this subchapter;
(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or
(3) intends to engage in the conduct described by Subdivision (1) or (2).

Any citizen of the state of Texas can bring suit against an abortion provider or assister (very loosely defined) to seek civil damages and attorneys' fees.  

Note that the law so far, does not punish the pregnant woman receiving the abortion (unless perhaps she paid for it herself), but punishes anyone aiding in that end.  The abortion provider, the person that drives you to the clinic, the person that helps pay for it, the person that gives you a name or number, etc, etc, etc.  If you even suspect that someone intends to drive a woman to seek an abortion after 6 weeks but hasn't done it yet, you could bring suit against them.

So, we have what should be a criminal statute, that doesn't criminalize the behavior.  

One that turns over enforcement to the people.

A civil suit that does not require that the plaintiff themselves have been injured.  

That award's statutory damages not less than $10,000.  A $10,000 bounty if you will.

We're breaking our rules of law to make this work, and we will all pay for it.

Make no mistake, you will see a rise in frivolous, tenuous lawsuits coming out of this because of the financial incentive.  They will flood our already overloaded court dockets, pushing out court dates for all manner of suits.  And this will likely lead to other attempts to use this type of legislation for other types of social issues.

Imagine if this had been used in the early days of the pandemic to enforce social distancing.  If you could get a $10,000 reward for turning in anyone you saw gathering in groups over 10.  That weren't wearing masks.  If you could sue them if you just heard them talking about a party, intending to gather.

That sounds like a nightmare, right?

This is why we have certain requirements for our laws.  Why we abide by them, even if we are trying to do what we deem is noble.

The ends must justify the means.  And they don't here.  The means are too destructive.

I could write more about this, and probably will.  But for now, I'm just stunned, a little numb.

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