Deep in the Dark of Texas

 

Wendy Davis, ready to run, via KTSA TV.

Maybe the most personally infuriating thing to me about the current flurry of state anti-abortion legislation is its open contempt for the rule of law: I mean these mean-minded, pinched and intolerant people, so ready to judge others for the slightest deviations from their own idea of propriety, passing laws that are flagrantly illegal according to settled law (as the members of a Supreme Court majority from Roberts through Kavanaugh and Barrett have maintained in their confirmation hearings). 

The "trigger laws" in something like 20 states from the previous wave were designed to take effect only after such a time as Roe and Casey are overturned, should that happen (I'm not convinced it will, at least this year, though they'll undoubtedly continue working to cripple abortion rights around the edges). The current wave, in Mississippi and Florida and Oklahoma and wherever else, is as if the law doesn't even exist; it's pretty much as if they passed a law legalizing slavery, or denying women the right to vote. Saying, as they do, that it might be constitutional soon, after the Court rules on the Mississippi law, doesn't cut the mustard: it's unconstitutional now, and they know it.

And the Texas law, the infamous SB8, is the worst of all, with its sly legalism in the provisions designed to prevent the Court from considering it—since the state is not enforcing the law, simply inviting bounty hunters to enforce it privately by suing anybody who assists in providing patients with abortion services in the state, for $10,000 in punitive damages, nobody has standing to sue the state, as decided just last week. 

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued. (Austin American-Statesman. April 26)

The law seems to be immune to judicial review—it's a state overturning the 1803 decision in Marbury v. Madison, and doing it by stealth. I can't even begin to say how pernicious I think this is.

So I'm pleased to hear that somebody in Texas is trying to do something about it, and that it's an old friend from the debate, former Texas state senator Wendy Davis, who staged the 13-hour filibuster in Austin in 2013 in defense of abortion rights and ran for governor against Greg Abbot in 2014: she showed up on NPR this morning to talk about the lawsuit she filed in federal court, also last week, on behalf of two abortion funds, the Austin-based Lilith Fund for Reproductive Equity and the national Stigma Relief Fund associated with the Whole Women's Health clinics. 

Abortion funds provide financial assistance to patients needing abortion services, which would include helping them get transportation out of states like Texas to states where their needs can be legally met. A Republican state representative, Briscoe Cain, has sent cease-and-desist letters to all the abortion funds active in Texas, informing them that they are engaging in illegal conduct, and Davis is suing him, along with some local abortion bounty hunters, on First Amendment grounds:

She claims in the suit that these threats against donors and volunteers "have had a chilling effect" and stop her from associating with "like-minded people to express her views and achieve her advocacy goals."...

The lawsuit filed Tuesday claims that the law violates the plaintiff’s rights to due process and free speech and asks the court to declare both this law and Texas’ older abortion law unenforceable.

“We are asking the courts today to stop the unconstitutional harassment of abortion funds by confirming S.B.8 cannot be used to silence donors with bogus threats,” Davis said in a statement. “More than that, we are asking the courts to stop the nightmare S.B.8 has created for Texans if they need abortion services." (Texas Tribune)

Of course if the Supreme Court does overturn Roe this is all moot; Texas's trigger abortion law, passed last June, will go into effect 30 days afterwards, outlawing all abortions at every stage of pregnancy, without exception for women at risk of suicide or self-harm or pregnant as a result of rape or incest (only if they risk death or "substantial impairment of major bodily function"), with possible punishments for the doctor of $100,000 fines or life in prison.

But if they don't, this really does seem like a good angle for undercutting SB8 and the free speech–cutting clones that I'm certain will follow it—the original proposals for Florida governor Ron De Santis's "Stop the WOKE Act" had a provision allowing parents to sue schools for offering "critical race theory", but the state only offered to pay their attorney fees, not $10,000 bounties, and I can't find any news coverage telling me that the bill DeSantis signed on April 22 still includes the provision, but if SB8 survives they will definitely come. 

Applause, anyway, to Davis and her unquenchable grit.