Texas state law, legal system and justice concept with gavel and Texas office flag 3D illustration. Photo: NiroDesign / Bigstock
With Texas winning the Supreme Court this Thursday, we are seeing a real sparkle and we should savor the moment. For those who don’t play chess, the ‘shining’, as defined by Grandmaster Kavalek, is ‘a time when something amazing, beautiful and inspiring happens on the chessboard’.
The chessboard in the legislative struggle for unborn children has continued for decades in a painfully slow war of attrition.
Every legislative movement to defend life has been blunted by the left’s dominance of the legal academy, its control of bars, its capture of for-profit and non-profit law firms, and its historic influence on nominations to law. courts.
Accordingly, any law which directly challenged Roe v. Wade just ended up with huge attorney fees filling the coffers of pro-abortion bureaus.
Of course, the ultimate responsibility for this sad post-Roe story rests with the souls of David Souter, Sandra Day O’Connor, Anthony Kennedy and John Roberts.
However, the pro-life movement has evolved and achieved notable victories along the way, including instituting 24-hour waiting periods and banning the horrific practice of partial birth abortion.
While these successes have hurt Roe over the years, what if pro-life groups find a way around Roe instead of fighting him?
After all, the Berlin Wall only fell after the East Germans found alternative routes to the West and changed the local reality.
Texas, in a masterstroke, found a way around the “Roe Wall” and is radically changing the facts about abortion counseling right now. Here is an account of how they did it.
The abortion industry has stifled pro-life laws by strategically presenting “pre-demand challenges” to liberal judges who obediently prevent laws from coming into effect.
This tactic alters the normal course of litigation, asking courts to consider what parties can and cannot do and weigh the harm that may or may not occur, rather than judging hard facts on the basis of events. real.
But on a case-by-case basis, the results-oriented judges have removed the legal norms on this point by using what Justice Scalia has dubbed the “ad hoc abortion machine” of abortion.
Pre-demand litigation does not literally erase the laws of the law. Instead, they operate through a legal fiction set in the Ex Parte Young case that allows federal courts to bar state officials from enforcing challenged laws.
But what if a state allowed private citizens to go to court to enforce violations?
This is exactly what Texas did. He passed a law banning abortions for heart-beating children, but left the execution exclusively to private parties who can sue $ 10,000 in damages for every illegal abortion.
Little noticed in the media panic over this law is the fact that defendants can still prevail if they prove that damages would represent a “substantial obstacle” to abortion for women attending a prosecution clinic.
The concept of personal enforcement is more familiar than you might think. Take the example of a typical small claims court, where disputes range from breach of contract to cases of falls and accidental damage to a neighbor’s property.
In each of these cases, enforcement is handled by private parties through the courts, and state prosecutors have nothing to do with securing compensation for plaintiffs.
You might think that Texas law differs because it allows individuals to sue, even when their own rights are not directly compromised or at stake. That’s a good point. However, third parties are already suing with some frequency for the benefit (indeed, on behalf of) the government.
The false declarations law [False Claims Act], for example, allows João and Maria da Silva to sue contractors who defrauded the federal government.
They don’t need to be employed by the government or the contractor, or have anything to do with the contract, but they can receive up to 30% of the money recovered if they prove fraud without any involvement of the federal government.
The genius of Texas was to apply these existing legal concepts and frameworks to neutralize the abortion industry’s most powerful weapon, the pre-application challenge.
Abortion clinics are now at an impasse because, on the one hand, there is no one to prosecute because no state agent is authorized to enforce the law, while, on the other hand, On the other hand, there are too many people to prosecute because they cannot identify who, among the millions of Texas pro-lifers, will come forward to enforce the law.
For Texas to relinquish its extraordinary power of pursuit while holding private citizens accountable is like an awe-inspiring chess queen sacrifice that allows weaker pawns to set a trap for an unsuspecting king.
Because of this outburst, for the first time since 1973, abortion clinics in Texas are shutting down mass abortions because they don’t want to appear before a judge to justify every time they arrest a heart’s heart. child.
What a wonderful sheikh.
Roger Severino is a senior member of the Center for Ethics and Public Policy.
© 2021 National review. Posted with permission. Original in English.