This has been quite a week as the abortion law has passed in the Texas legislature granting the authority to private citizens to turn into bounty hunters, without any requirement of personal damages or standing, to uphold a law that may or may not be constitutional.
First of all, unless you are a sociopath serial killer, people in the world do not want to hurt children. It’s an innate instinct as a human being to protect another person who is vulnerable. If there is a child on the side of the road crying, someone will come pick up that child, look around for a parent, make sure that child doesn’t toddle out on the highway, no matter if they are Republican, Democrat, Muslim, Jew, or Christian. We are humans, and we recognize the plight of the helpless, and we are all wired to help those who area in need. I’ve never met one person who was like “unleash the killings upon the children! Who wants a beer?” Tragedies have forever highlighted the power of community, and as Mr. Rodgers has famously said, look for the helpers.
Abortion is complicated as different people believe that life “begins” at different points, and that a woman has the right to control her own body (but up to a point, depending on when you believe life begins), just like a person has a right to defend their own life in certain situations when their own life is threatened but has to be cautious about using deadly force. There are legal treaties and legal case law miles long about this issue. So for us to boil it down to “right vs wrong” or one way is right and one is simply wrong without further analysis and compassion is simply foolish.
But then again, I’m a lawyer and I’m trained to look at things from both sides.
As Richard Epstein pointed out in an article in the Hoover Institute, What is a person? And what are the justifications that make it lawful to kill another person? On one hand, abortion advocates indicate no one becomes a person until he or she is outside the womb. When a woman is pregnant, the argument is that it’s not a human inside of her, it’s still part of the mother. That claim brings fierce responses by anti-abortion advocates, who say the DNA of the child is distinct from that of the mother and father, and that it is thus absurd to claim that an unborn child with a heartbeat does not have the status of an independent person.
I am in a unique position to understand this debate. My children attend a private Christian school, filled with parents who are passionate about this issue on both sides. I was born and raised in a small Texas town where things seem very black and white. Where you can buy deer corn on every corner, you go to church whether you really believe or not, and things seem so simple when you’re around those who feel the exact same as you do. And yet many people cannot see past their own bias.
Will we come to agreement on this issue? Likely not. So this will always be a burning issue not only in humanity, but in our own family and friend circles.
But in some cases, regardless of your feelings on abortion, common sense should prevail. What about women who are raped, or molested by an uncle and end up getting pregnant and don’t know it quickly enough in a six week period because they are already in trauma and working non-stop and they drink too much and eat too much and they thought that weight gain or nausea wasn’t possibly the result of a pregnancy. Must that woman be forced to bear her rapist’s child? Or must that woman secretly try and find her way to another state to deal with this horrific tragedy? And if she is a minority and poor and has no clue how to navigate this system, because if she takes more than a day off of work she will get fired, and she can’t pay for rent in a house she shares with her sick mother and two-year old child, is she just stuck, and must bear the child of her uncle the rapist? Surely we can at least see the banality of the right vs wrong, one size fits all mentality when life has shades of gray.
But if we can step aside from the abortion debate for a moment, let’s discuss the broader reach of this law that is the most disturbing.
What is most concerning to me is the sweeping bravado to think that the legislature can ignore the way our system of justice works in this country. It has long stood as precedence that that in order to sue another individual for a tort, or because a person is violating a particular law, the plaintiff must be personally harmed and have standing to bring a lawsuit, and there must be damages as a part of the analysis that are compensatory. You must assert that claim when bringing such suit, and there is a burden of knowledge (and/or legal fees to get help in this process) in order to go down this path. If you just go around suing each other when it’s not your business, you have no legal standing, and you have no personal damages, and a motion to dismiss is the appropriate response. That fight will be shut down quickly enough. There are even counterclaims specifically designed to punish those that file frivolous lawsuits. Or at least the courts will issue stays if a law changes to keep the status quo intact in order to avoid harm until things are more sorted. But not in this case.
This Texas law is different from previous bans in that it prohibits the state from enforcing the ban, instead authorizing private citizens to bring civil suits against anyone who “aids or abets” an abortion. It’s a true bounty hunter situation at hand here. This is ludicrous. We are Americans, not scared Germans, afraid of Nazi soldiers, where everyone is informing on their neighbors’ actions.
Part of any legal claim that is compensable under the law is that it isn’t something a person is just intending to do, or thinking about doing, but actually completes the action. If someone says “I’m going to kill my asshole ex-husband” or “I’m thinking of committing tax fraud” that isn’t actionable by law unless the ex-husband turns up in a ditch and they find the murder weapon in your desk drawer or if they prove you actually defrauded the government. But in this statute, the language says that you can bring a claim if you know that someone intends to procure an abortion or aid and abet one. That should scare us all.
The rule of law is really whatever the Texas legislature believes it is, and apparently the highest court of the land just doesn’t want to get involved. This is the classic law school example of a “slippery slope.” Today it’s abortion, but tomorrow it’s religious freedom, right to bear arms, and individual liberty. If you are okay with it now when it suits your purposes, how will you feel when the tables are turned?
We should all care. We live in a civilized society where we don’t go around hiding in our homes, pointing fingers at our neighbors without evidence, with not only protection of the law but a financial incentive to do so. We have an obligation to speak up against this injustice before it spreads like the cancer that it is. And the fact is, lower-income women, many minorities or immigrants, without large chests of money are the ones who are affected the most. They are also vulnerable, and need protection.
I will take a stand against this law as a Texan. I will take a stand against this law as a lawyer. And I will take a stand against this law as a woman who lives in a nation of freedom.
No worries. “Governor” Abbott is going to do away with rapists. His latest assurance. Yep….that’ll work, Greg!