Last week, the Texas legislature passed a law that would prohibit abortions past six weeks. In a controversial decision, the Supreme Court opted to allow the law to remain in place without judicial review. Without getting too much into the weeds of this law, Texas has basically allowed any citizen to sue anyone involved in an abortion in civil court, instead of abortion being policed by law. Since the law is now active, the only way SCOTUS will hear arguments about it will be if an actual lawsuit is brought up through the lower courts.
As I am not a legal scholar, I will not be commenting on this law, its constitutionality, or its chance of being upheld or struck down. However, there are two massive unintended consequences that this law has created (or has the potential to create) in its wake. And while the law itself is being viewed as a massive win for the pro-life side (for now), it should be clear that this brings a new slew of questions with it.
Let’s start with the less consequential side effect. This case, being the most significant decision in the abortion debate in decades, gives the press a lot to work with. This is a press that has been desperate to stop covering the disastrous Afghanistan evacuation from August. The Biden Administration’s bungling of Afghanistan has been a problem for the left-leaning media. On the one hand, it was the biggest foreign policy story in twenty years, but on the other hand, it made the Biden Administration look terrible. And it seemed as though just like the Biden Administration, the media was looking for any excuse to reduce its coverage of the Middle East.
In steps Texas. The timing of this allows popular media outlets like CNN, MSNBC, The New York Times, and The Washington Post to dominate their coverage with this Texas bill. If there is any hope for Conservatives to keep Afghanistan in the minds of voters for the next 15 months until the midterm elections, they could do better than to allow the media to divert their attention a mere two days after the last plane took off from Kabul. Republicans are never slow to stop Democrats from punching themselves in the face.
The second and far more consequential outcome of this law would only happen if SCOTUS allows it to stay. We are hearing reports of other Red States ready to copy Texas once SCOTUS weighs in. We could possibly see six-week abortion bans in half of the states in the union within the next few years. However, what should get Conservatives nervous is how Liberals would be able to use this new-found legal loophole to cram down their views of justice in their own states.
Would it surprise you if, following a Supreme Court decision that upholds this law, New York introduces legislation that allows a civil suit to be brought against a business that refuses to accommodate a gay wedding? Sure, right now that can be done, but the key to the Texas law is that an unlimited number of litigants can bring the suit. Hundreds of lawsuits can be brought against an offender, each costing up to $10,000. If anyone will be allowed to bring the same lawsuit, a state can effectively end any protections offered in the constitution.
Any civil liberties case could be endlessly litigated. LGBT rights? Gun control? Healthcare? Take your pick of the hot-button issues. Liberals would have a field day with this type of law. Imagine how that could impact religious institutions. Shuls could be forced at the threat of a lawsuit to accommodate things that go against Judaism. Schools could be sued by random individuals for not teaching certain topics, or teaching others.
This Texas law basically grants standing to anyone - not just those affected by the action. This is one of the items on a Liberal’s wish list. Liberals have been arguing for decades that the minor actions of one individual has an impact on society in general, and now Conservatives have given them the idea of how to make that point codified into law.
You would think that both parties would’ve learned by now what happens if you try to look for loopholes. When Democratic Senator and Senate Majority Leader Harry Reid invoked the nuclear option in 2013 and blew up the filibuster, he should have known how Republicans were going to use that in the future. Republicans are doing the same thing now. It is understandable how much fight there is against abortion, especially if you believe that the baby is a human life. But fight it the correct way: Do not look for loopholes, because that will come back to bite you in ways you should be able to easily imagine.
Izzo Zwiren is the host of The Jewish Living Podcast, where he and his guests delve into any and all areas of Orthodox Judaism.