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With the romantically labeled “Texas Heartbeat Act,” Texas’s Republican-controlled government has deputized individual citizens to sue anyone who might be involved in abortion. The target could be a doctor, a cab driver unknowingly transporting a woman to a clinic, an insurance company rep, a nurse, a friend accompanying the woman, and just about anyone else knowingly or even unwittingly assisting an abortion. The informant might be a bored neighbor, a passerby overhearing a woman telling a cab driver where she wants to be driven, a disgruntled patient in a waiting room, the uncle everyone tries to ignore at Thanksgiving.
If a court finds a connection between the accused defendant and the abortion of an embryo with a heartbeat, typically beginning at the six-week stage, the court is required to order the defendant to pay the accuser a minimum of $10,000 plus costs and attorney’s fees. There are no exceptions for rape or incest. At the same time, the court cannot grant costs or attorney’s fees to a defendant who wins. Thus, every incentive has been put in place for bystanders and cranks to sue anyone they so much as fantasize might be involved in an abortion.
Informants—snitches—are the means by which totalitarian regimes control their population. Arbitrarily, I think of East Germany, where everyone you encountered might be an informant, every official a potential threat. The one saving grace in Texas is that the accuser will be required to come forward to file the lawsuit in order to get that $10,000-plus bounty.
In theory, the state isn’t involved, a strategy the legislation’s authors adopted to impede court challenges. However, it is the Republican-run state that created this scheme and the Republican-run state that will defend it. Moreover, although the statute bars government officials from being a party in these cases, the law explicitly authorizes the government to file amicus curiae (“friend of the court”) briefs, thus ensuring judges know exactly where the government stands. Accusers know they have the government at their backs, just as informants in East Germany knew the Stasi did.
Setting aside Roe v. Wade, which may well be under fatal assault, I do wonder about the “Texas Heartbeat” act’s viability. Authors of the articles I’ve read seem confident that its grant of standing to citizen informants to sue will survive. However, in American jurisprudence, in order to sue, you must have a material or other interest in the outcome beyond merely wishing something were true. Texas’s Republicans want to wish abortion away, but that doesn’t strike me as legally sufficient grounds to give someone standing to sue a total stranger, never mind a neighbor over something about which they have no involvement.
Even so, the United States Supreme Court has already signaled its approval by allowing the law to go into effect before its constitutionality has been tested in the courts. As a lawyer, I’ll be curious to see how federal and state courts in Texas address the standing question and, ultimately, whether a Supreme Court majority can be cobbled together to declare the law unconstitutional. As a citizen, albeit far away in Brooklyn, I’ll be disturbed if the courts fail to strike this monster dead.
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People outside Texas intend to boycott Texas businesses, shun products made in Texas and avoid traveling there.
But what is Texas? In many ways, it functions like its own country, which it was for a decade, long ago between 1836 and 1846. Some Texans still refer to their state as a republic.
A country is like a person. Both have a certain way about them. They project certain things we like and other things we don’t. How those projections balance out causes us to respond with indifference, affection or repulsion.
Likewise, each country and person tends to harbor contradictions. A country that projects hostility toward the idea of immigrants may treat immigrants who get through anyway with kindness. In a similar vein, there are people who avow racist or homophobic beliefs and yet who are genuinely welcoming toward the people they meet from other races and orientations. Are they this way with individuals because they’re embarrassed about their harsh views? Or do they perceive the world as a television’s split screen, with frightening hordes on one side and, say, a gentle black lesbian with a nice sense of humor on the other. It’s easy to hate a crowd, but it takes effort to be rude to a person who treats you warmly and respectfully.
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Texas used to be rock-bottom on my list of places to visit. As I see it, rodeos and Stetson hats are for people who like things rough. Texan far-right politics masquerading as religion do both a disservice. Swagger in anyone puts me off, and Texans are notorious for theirs. The classic Texas accent is all about swagger. George W Bush brought a contrived version to the White House. At least LBJ’s was authentic.
However, skipping Texas ceased to be an option for me when my wife’s brother and sister-in-law moved there. Their children and grandchildren all live there. I feel fortunate that their presence compelled me to become acquainted with their state. I posted two previous essays about Texas: one written in February 2017 where I tried to reconcile its disparate elements (here), and a second written two years later where my focus was more on what is delightful about the state (here).
It seems that if you live in Texas, you find a community that feels right for you. If you’re a transplanted Northerner, you will probably choose a suburban location where other carpetbaggers have flocked. If you’re liberal, you’ll head for Austin, ironically the conservative state’s capital. Then, for better or worse, there are the places that make right-wing extremists feel at home.
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So, Texas isn’t a monolith. However, when a country sets vigilantes afoot, as happened in East Germany decades ago, and is happening in Hong Kong, Afghanistan and elsewhere around the world today, opponents become few and far between, and then they go underground. After that, all that remains for the world to see is a Stasi state. Such is the system that Texas has now ushered in.
So what do we do with the distress many of us feel about this law? Many Texans oppose it, but to the extent Texas runs a democracy, its people elected this Republican legislature and governor. We are taught to respect decisions made by democracies. In that case, isn’t it a corollary that we are right to denounce a state whose voters elected the party that instituted this system?
All I know is this: Joe McCarthy, that crazy anti-communist, is turning in his whiskey-soaked grave.
Note: You can read the full text of the statute in this PDF file or at this webpage. Most of the language is plain English. The drafters were hardly ashamed of what they were sowing.
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