The Texas Abortion Ban is Unconstitutional | Opinion

The Texas anti-abortion statute is unconstitutional in so many different ways it is hard to know where to begin. Most fundamentally, it flies directly into the face of Supreme Court precedents starting with Roe v. Wade and continuing until now. There is simply no Supreme Court decision allowing a state to ban abortion as soon as a heartbeat is detected. Lower courts are bound by Supreme Court decisions unless they are overruled.

As technology increases, heartbeat detection will come earlier and earlier. Now it is set at about six weeks—before many women even realize they are pregnant.

The Texas statue is, therefore, a functional ban on abortion, deliberately designed to force the Supreme Court to reconsider 50 years of precedent. Texas law makers are counting on the three Donald Trump appointees to the Supreme Court to overrule Roe, as Trump promised they would when he appointed them.

But Supreme Court precedent should not be lightly ignored even by those who regard them as wrong. Stare decisis (to stand by things decided) is an important part not only of American jurisprudence, but of all common law jurisprudence. Apparently, Texas law makers have little respect for precedent or for preserving the role of the Supreme Court as a neutral arbiter of the Constitution.

Many scholars and legal experts were skeptical of the reasoning of Roe v. Wade when it was decided back in 1973. Many were also skeptical of the reasoning of Brown v. Board of Education when it was decided back in 1954. Today, no serious person would call for the overruling of Brown. Nor should any reasonable person, even those who were originally skeptical of Roe, call for its overruling or modification after women, girls, doctors and others have relied on this super precedent for nearly half a century.

U.S. Supreme Court
The U.S. Supreme Court is seen on Sept. 2, 2021, in Washington, D.C. Kevin Dietsch/Getty Images

Second, the Texas statute is unconstitutional in that it allocates to ordinary citizens who have no connection to the woman seeking an abortion the power to sue anyone who provides any help to the female. The specified damages are $10,000. This is a bizarre end run around our entire system of constitutional adjudication under which laws are enforced by government officials, not by buttinsky busybodies out to make a quick buck, with no standing to object to a particular abortion. Imagine if the state provided similar power to citizens to sue anyone who helped perform gay marriages, or pray in churches, or vote? Abortion is now as fundamental a right as gay marriage, religious worship and voting. If the state wants to try to interfere with these rights, it must do so directly and not through surrogates, so that the prohibition may be properly challenged in court.

The transparent attempt by Texas lawmakers to circumvent the rule of law and the constitutional right of abortion should be quickly slapped down by the Supreme Court. It doesn't really matter whether a justice supports abortion or opposes abortion as a question or morality or religion. The rule of law requires that Texas lawmakers be told in no uncertain terms that they cannot engage in this kind of lawless and reckless circumvention.

This abhorrent statute should unite all the justices—indeed all Americans who care about the rule of law—in condemning the Texas statute and the attitude toward the law it represents.

The Supreme Court already has on its docket another case challenging Roe v. Wade, but without the circumvention's aspect of the Texas statute. The outcome of that case will determine whether Roe v. Wade stands, falls, or is modified to the point where it no longer protects the health and bodily integrity of women and girls. But the justices should strike down the Texas law without even reaching the merits of the abortion issue: No state should be permitted to empower individual strangers to threaten with financial damages doctors, nurses, parents, ministers and even Uber drivers who assist a woman or a girl who is seeking an abortion.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.