A clear majority of Americans want abortion to be legal in the first trimester of a pregnancy. So how did this ingeniously awful law come to pass?
The Texas law is ingeniously awful. Its novel enforcement mechanism was designed by a former clerk to the late Antonin Scalia, a justice who died in 2016, to evade scrutiny by the court. Challenges to a state law’s constitutionality usually require someone to bring a case against the state officials. The Texas law makes that tricky, by explicitly preventing public officials in Texas from enforcing it.
The law does not allow plaintiffs to sue women who have abortions, perhaps because targeting pregnant women directly is unpopular. But the effect is the same. While nobody has yet taken advantage of the law to sue and claim their reward, the fear of being sued means that abortion clinics in Texas have been turning women away. One probable consequence is that more women will end up seeking later, more traumatic abortions in other states.
One principle of good lawmaking is that rules should be both simple and enforceable. This is neither. Conservative lawyers used to favour tort reform to make America less litigious. That principle turns out to be dispensable, too. As John Roberts, the chief justice, said in his dissent, it would have been better for the court to temporarily block the Texas law because it is so unusual.
The decision not to damages the Supreme Court. It is hard to imagine the majority being so relaxed had the Texas law offered prizes to people who sue gun shops and their employees after school shootings. The five justices in the majority are therefore open to charges of motivated reasoning, which is particularly troubling given that in its upcoming term the court is scheduled to rule on a direct challenge toIt is still possible that the court could.
This is a bad outcome. A clear majority of Americans want abortion to be legal in the first trimester of a pregnancy and illegal in the third, with exceptions for when carrying the fetus to term would endanger a woman’s life. The country’s long-running abortion wars cannot possibly be solved by giving people $10,000 for suing a nurse.
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