To the Editor:
The recently enacted Texas Senate Bill 8 (Texas Heartbeat Act) is well recognized as unconstitutional based on precedent set by the 1973 U.S. Supreme Court decision in Roe vs. Wade. Authors of the bill from the Texas Legislature acknowledged as much right in their bill. What constitutional bill would ever have need to include a provision like the following (paraphrased from Section 171.208 of TX SB8)? Notwithstanding any other law, a defendant’s belief that the requirements of this subchapter are unconstitutional or were unconstitutional is not a defense to an action brought under this section.
Stunningly, this didn’t stop the 2021 U.S. Supreme Court from upholding the law under the shady cover of a shadow docket. This casts a bright spotlight on the urgent need for congressional action to ban any state or federal legislative act that attempts to enforce a law solely by private civil litigation; the devious technique used by Texas state legislators to sidestep the legal mechanisms that have repeatedly halted similar abortion-banning heartbeat acts in other states. This legal detour should be permanently blocked by Congress. We are a society of laws that should be enforced by authorities accountable to the public, not by private vigilantes.
The danger here is imminent. If this legal mechanism is allowed to persist, it could “go viral” among state legislatures to challenge (with renewed optimism) any law disliked by a gerrymandered legislative majority. Don’t we have enough dangerous viral proliferation to be concerned with?