Deliberating Texas SB 8
Deliberatus is anti-abortion, the correct term for the viewpoint that holds government’s interest in protecting unborn life in the highest regard. Not “abortion is murder” anti-abortion, not “even in cases of rape or incest” anti-abortion. Just anti-abortion in a reasonable sense of the position.
The keyword being reasonable. Is what Texas did with its SB 8 reasonable? Let’s dig in.
SB 8 bans abortions whenever “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac” is detectable. How exactly does that conflict with Roe vs Wade? Well. It conflicts with Planned Parenthood vs Casey, which established that government can only infringe on the right to privacy—which turns into abortion via Wade—at or after the point a fetus would be viable.
Wait. A fetus isn’t viable just because it has the utero version of a beating heart. Exactly. SB 8 straight up violates the Casey standard. That's the point. But! The Texas Legislature has reviewed the evidence and claims a “fetal heartbeat has become a key medical predictor that an unborn child will reach live birth” and therefore “the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity.”
“Hey, lady, this thing is pumping away in there. You sure about this?” — The Texas Legislature, basically. To cover its tracks the Legislature goes on to establish that it does not recognize a right to abortion before a fetal heartbeat can be detected. Lest anyone be confused into thinking a majority of Texas lawmakers are pro-abortion.
Deliberatus believes reasonable people can debate whether or not government has a compelling interest to infringe on the right of privacy—and by extension the right to an abortion—at this stage of a pregnancy. No matter what the loudest voices on either extreme try to tell you, that is exactly what the abortion debate is about. When should government get to infringe on a right?
Allowing infringement on our rights is nothing new. You can’t vote until you’re 18, you can’t yell fire in a crowded theater, you can’t possess a handgun without a permit, and on and on. We allow it when the government’s interest in doing so is on the highest import. If push came to shove and Deliberatus had to vote up or down on a clean bill infringing on the right to have an abortion—under your right to privacy—based upon detection of a fetal heartbeat…Deliberatus would vote yes because protecting a life is, in my view, of the highest import.
But we don’t have a clean bill here. Not even close. SB 8 includes policymaking acrobatics that demand much more deliberation. In its infinite wisdom (remember, it is also anti-abortion) the Texas Legislature wrote the bill so the state will not be the law enforcement entity blocking people from undergoing an abortion procedure based on their right to privacy. The deputized citizens of Texas will put on their hats, pin the lawman's gold star upon their shirt and take charge of enforcing SB 8.
Say what?
That's right. In order to make sure the state doesn't infringe on your rights, Texas will have regular people enforce its fetal heartbeat law. This is equal parts brilliant and terrifying. Brilliant because it throws a massive legal roadblock in the way of abortion proponents who want the law struck down.
And terrifying for how easy it is to predict how this constitutional end-around could go awry. We have an awful lot of people who think government should mandate the COVID-19 vaccine. If I were a Democrat I’d be spinning up the bill right now to require every American age 18-and-up to undergo a medical procedure to have the vaccine injected into their body and deputize any citizen to bring charges against another who refuses. After all, if government can violate the right of privacy to prohibit a medical procedure (abortion) then it's not a leap to say it can violate that same right to mandate a medical procedure (vaccination).
I’d also draw up language for a bill banning the sale or possession of all firearms and deputize any citizen to bring charges against another who is seen to be in violation. Under the precedent established by the Texas Legislature this would not be any sort of constitutional violation because it is citizens, not the state, who enforce the law that infringes on our right to bear arms. So everybody lineup outside Dick’s Sporting Goods and get ready to search some bags!
The danger gets more frightening when we think with our Hollywood mind. Anyone up for writing cancel culture into statute? A runaway Legislature could deputize citizens to file suit against political speech unfavourable to its agenda. Or establish a de facto state religion by sending citizens into mosques to round up Muslims. The Fourth Amendment would be no big deal to these vigilante cops either, so trying to hide your Koran or your anti-establishment campaign literature under the mattress wouldn't work. Oh, they already got you? Well get ready for your trial before the Honourable Judge Wackner. What? He's not a real judge? Well he's the judge of the citizen court where you don't get to confront your accuser or have defense counsel, and that's how these crimes are tried now that we know how to circumvent the Seventh Amendment.
Isn't this fun! These hypotheticals may sound ridiculous, but remember what Deliberatus always says about government: If government can, government will. If SB 8 shows government can do an end run around our constitutional rights, government some day will do an end run around our constitutional rights. Would you want Bernie Sanders to have that power? Or Donald Trump?
So should Texas SB 8 be allowed to stand? Absolutely not. We cannot allow state legislatures to perform legal acrobatics that so obviously and dangerously put all of our constitutional rights in jeopardy. The Bill of Rights itself is at peril if the Supreme Court does not strike this law down with great anger and furious vengeance.
It is so deliberated.