Pro-life Bill Attempts to Kill Roe

When Texas’s Senate Bill 8 (SB8) took effect on September 1, known as the “Texas Heartbeat Act” under section one of the law, most people expected it to reach the Supreme Court for violating Roe v. Wade’s precedent under which women are entitled to privacy when receiving abortions. It was the Democrats’ worst fears come true: Trump’s heirs on the Supreme Court could finally make good on his campaign promise to overturn the nation’s landmark ruling.

A few days before the law was set to go into effect, it went to the Supreme Court in an emergency request to block the law until its constitutionality could be determined, but in a surprisingly convoluted and pedantic motion relying extensively upon the law’s more dubious provisions, the Supreme Court, in a 5-4 ruling, declined to block its passage. Still, the Court did not rule on the law’s constitutionality— something John Roberts’s dissenting opinion made abundantly clear. The most odious provisions in SB8 were crafted with surgical precision meant to circumvent judicial review, which proved particularly ideal for judges who take an especially textualist approach to ignore the blatant unconstitutionality of SB8— this explains why a court imbued with Scalia apostles allowed the Texas law to proceed into effect.

The majority opinion held that while the federal court is not endowed with the ability to block a law in question, it is allowed to block the enforcement of the law. SB8 is not technically enforced by state or local officials, rather it is enforced by deputizing all private citizens; in other words, private citizens are responsible for reporting and suing any persons who are thought to have had, given, or aided in abortions— meaning that patients, doctors, nurses, receptionists, and even Uber drivers can be sued under this law if an ordinary citizen believes an abortion took place.

If the courts rule in favor of the private reporting citizen, the citizen is entitled to $10,000 by the state, creating a dystopian bounty-hunting system that insulates the Texas government from being held responsible for its law that it created like a game of legislative hot potato. The majority opinion, being the good and noble textualists they are, argued that because it is instead private citizens who are responsible for enforcing the law, the bill could not prohibit Texas from enforcing the law as it would not technically be Texas enforcing it. Such an argument is absurd, however: if the government shares the will of the people— a necessary reflection of its society— then the laws that are created by the government would be representative of the people, meaning the Supreme Court’s choice to enjoin a law by restricting government enforcement would also mean that it restricts its people; so, it does not matter who enforces the law, it’s only a matter that such an onerous law should exist— especially when the net result should be the same.

After the Supreme Court declined to enjoin the law, Biden’s Department of Justice sued the State of Texas challenging the constitutionality of the law, arguing in two parts that it both violated Roe v. Wade’s legal precedent and required proper judicial review of its dubious enforcement mechanisms. On October 6, Western Texas’s District Court enjoined the law as the judge ruled both that the law itself was unconstitutional and the enforcement mechanism was blatantly unconstitutional as it sought to avoid judicial review.

No more than two days later, Texas’s appeal to the 5th Circuit Court was successful, reinstating SB8. The DOJ has not yet appealed the decision to the Supreme Court, but is expected to do so within a few weeks. The Supreme Court could choose to decline to hear the constitutionality of the case, but it would be incredibly unlikely as it challenges Roe v Wade as well as the lack of precedent for the enforcement mechanism.

SB8 may be the bill to finally kill Roe v. Wade, but its future is far from final. TX SB8 flies under the guise of modern progress for the rights and liberation of the unborn— a frontier of the American left’s immoral and profane agenda. But for the women who will most feel the impacts of this bill, it’s a matter of temporal whiplash as the rugged individualism that the lone star state has promoted since 1836 failed to disclose that only men were given the courtesy of wearing the lone star moniker. Because somehow, nearly 200 years later, the lone star’s liberation is still the woman’s condemnation, leaving us wondering if we ever knew the meaning of progress in the first place.

- Madeline Wyatt