The Unconstitutionality of Texas Senate Bill 8
With much encouragement from Governor Abbot, the Texas state legislature recently passed the highly controversial Texas Senate Bill 8. The premise of the bill stands on a debatably constitutional “loophole” in order to discourage abortions within the state after six weeks from conception, with the exception of “medical emergencies” (which do not include cases of rape and incest).[1] To avoid violating the precedent set by Roe v Wade, the bill relies on private citizens, as opposed to the government, to file civil suits against anyone involved in helping to provide the abortion. If found guilty, the accused faces a fine of at least $10,000 per violation proven. On November 1st of 2021, the Supreme Court heard two lawsuits regarding the bill, Whole Womens’ Health v. Jackson and the United States v. Texas. Senate Bill 8 of Texas is not only legally infeasible, but it is a clear breach of constitutional precedents and a threat to the established constitutional rights of the American people. Senate Bill 8 allows for restriction of civil liberties, has no basis in past legal precedence, and ignores previous court rulings.While rulings on this case are yet to come, the Court has a responsibility to uphold the Constitution and repeal the law.
Senate Bill 8 (SB 8) blatantly disregards previously set Supreme Court’s precedents in both past abortion and restrictions against civil liberties. In Roe v Wade[2] and Planned Parenthood v Casey,[3] the Court clearly ruled that abortion rights are constitutionally protected under the 14th amendment. Particularly, Roe v. Wade’s opinion stated that the state may not regulate a pregnancy because of the Fourteenth Amendment’s due process clause, a ruling later reaffirmed by Planned Parenthood v Casey by establishing a test for the constitutionality of abortion regulations.[4] Under this test, causing an “undue burden” or substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” qualifies as unconstitutional.[5] By threatening doctors with $10,000 fines, SB8 rejects the precedent set by both these cases through the imposition of a substantial obstacle. The United States v. Jackson’s case offers insight into previous court rulings regarding making the exercise of a right difficult but not illegal. The ruling states, “If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.”[6] This said, SB8 clearly has no purpose other than to dissuade people seeking an abortion, which would make the bill in violation of the Jackson’s precedent in addition to Roe and Casey. The current challenges to SB8, United States v Texas and Whole Women’s Health v. Jackson, question two different aspects of the law. The latter asks the question of whether a state can stop the federal court from reviewing a law that prohibits a constitutional right by incentivizing the public to act as enforcement. The Court’s authority for ruling on SB8 would be justified by United States v. Jackson because it purposefully penalizes those accessing a constitutional right. Furthermore, United States v. Texas asks the question of whether or not the United States has the authority to prohibit the enforcement of an unconstitutional law. Article 6 of the Constitution establishes the federal Constitution as the supreme law of the land, primary to any laws states may create.[7] A state law contradicting the Constitution should automatically be called for review and removed. To quote the petitioners, “States are free to ask this Court to reconsider its constitutional precedents, but they are not free to place themselves above this Court, nullify the Court’s decisions in their borders, and block the judicial review necessary to vindicate federal rights.”[8] Plainly said, the state of Texas has no right to blatantly ignore the Constitution. Consequently, SB8 has no place within Texas laws.
If allowed to stand, Senate Bill 8 represents a threat to other guaranteed rights. Most importantly, it could encourage other states to follow suit and propose laws encouraging civil suits against other rights, such as freedom of speech and religion guaranteed in the First Amendment.[9] For example, Republicans in the Ohio state legislature are already crafting an even more restrictive version of SB8.[10] If passed, this bill would ban abortion completely— unlike Texas’s six weeks cutoff. Called H.B. 480, this bill also relies on civil suits by private citizens to prosecute alleged abortion assistance. Clearly, the premise of SB8 is already spreading to other states and, if not overturned, this law could also move to restrict other civil liberties. Concerns have been raised about other rights guaranteed in the Constitution, which may be restricted if SB8 is not stricken down. During the November 1st hearing on Whole Women’s Health v. Jackson, Justice Kavanaugh cited an amicus curiae brief submitted by the Firearms Policy Coalition.[11] This brief says, “If Texas’s scheme for postponing or avoiding federal judicial review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights. New York is already experimenting with private enforcement of anti-gun laws and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms,”[12] showing how this type of law could be potentially devastating to the further protections of other constitutional rights.
It is now clear to see that SB8 paves the way for further restriction of civil liberties, has no basis in past legal precedence, and completely disregards previous court rulings. It is imperative that the Court overturn this egregious act of Constitutional disregard to further protect the civil liberties and rights guaranteed to the people.
