Pet Issues and Precedent

I’m watching in fascination, both the various legal analyses of the newly implemented Texas abortion law….and the even newer pursuit of one-upsmanship on the part of a couple of other states.

Whether it’s the Left on issues like gun control or the Right with abortion……one wonders if they ever stop to calculate the second and third order effects……as well as the very real fact that their legal victories…..can serve as precedent when tables are turned, or in jurisdictions where they aren’t in the majority.

To this end, an OpEd in the WSJ notes:

“This one delegates exclusive enforcement to private citizens, who are authorized to sue anyone who “aids or abets” an abortion after six weeks. Citizens who prevail in their civil lawsuits are entitled to at least $10,000 per abortion along with legal costs.”

The law sets an awful precedent that conservatives should hate. Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners? Texas argues that abortion providers don’t have standing to challenge the law because the state isn’t enforcing it and neither at this point is any private citizen. Thus there is no case or controversy, which is what courts are supposed to settle. This is technically correct and it is why the five Justices declined to enjoin the law.

The entire article is behind a paywall, but this and another snippet can be found here.

I have little doubt that this law will be struck down, not because it effectively skirts settled law, but for the manner in which it does…..and the horrible precedent it sets. Snitch lines/website? Blanket legal standing for unaffected Citizens to sue?

This is a dangerous road that political myopia built.

12 thoughts on “Pet Issues and Precedent

  1. Admittedly the Texas law was profoundly creative.. although…. what made it effective was SCOTUS’ inattention to it. If I were the typical Right wing conspiracy theorist I might entertain the drama that certain Texas legislature member were in “phone call” cahoots with some SCOTUS conservative judges. I quite obviously do not believe that, but the events were coincidental enough to imagine the Hollywood plot line.


  2. I’m not sure CI if the law will be eventually struck down.

    While the justices, who timidly would not even sign their order, left the door open for future challenges, they also signaled that they were not inclined to strike it down because they felt/believe/hope Roe V Wade will come up for review soon.

    And they lean towards ending that long standing precedent.

    This case has a lot of interesting turns. Why not, as Justice Roberts asked, issue an immediate stay and take time to rule conclusively on it. Probably because the Mississippi case would hit the SCOTUS before the review was concluded.

    At the end of the day, I’m a believer in precedent.

    In the Civil Rights Era, so much of our progress, including the Loving Decision of 1967 which made my marriage to an African American woman legal in all 50 states was built on precedent. That decision was based on the precedents of due process, equal protection and various others. I am not sure where we go when a number of current SCOTUS judges refused to recognize the precedents I cited or even Brown V Topeka.

    It’s that refusal, I believe, that led to the recent Texas decision and will probably lead to the overturning of Roe. Most likely the reason why they let the Texas law stand.


    • My guess… let it marinate in the shock & awe of the creative audacity.. then let it simmer a bit as we get to understand the ramifications, political and real… then it will start percolating. Roe may go at some point down the line under normal social change. But like this? I don’t see this as being successful.

      I would also guess that someone somewhere is using this legislation to create a control on the Second Amendment, if for nothing else but to threaten the democratic morality of the idea of neighbors-turning-in- neighbors.
      As I said.. just a speculation on my part.

      Liked by 1 person

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