With Texas’ victory in the Supreme Court this Thursday, we are witnessing true brilliance and we should savor the moment. For those who don’t play chess, “brilliancy”, as defined by Grandmaster Kavalek, is “a moment when something amazing, beautiful and inspiring happens on the chessboard.”
The chessboard in the legislative struggle for unborn children went on for decades in a painfully slow attrition war.
Every legislative move to defend life has been blunted by the left’s dominance of the legal academy, its control of bar associations, its capture of for-profit and non-profit law firms, and its historic influence on court appointments.
As a result, any law that directly challenged the decision Roe vs. Wade it has only resulted in huge awards for attorney fees filling the coffers of pro-abortion offices.
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 moved on and won some notable victories along the way, including instituting 24-hour waiting periods and banning the horrific practice of partial-birth abortion.
Although these successes have harmed roe over the years, what if pro-life groups found a way around roe instead of fighting it?
After all, the Berlin Wall fell only after the East Germans found alternative routes to the West and changed local reality.
Texas, in a masterstroke, has found a way around the “Roe’s Wall” and is dramatically changing the facts on the abortion board right now. Here is an account of how they did it.
The abortion industry has stifled pro-life laws by strategically presenting “pre-application challenges” to liberal judges who obediently prevent the laws from taking effect.
This tactic alters the normal course of litigation, asking courts to consider what the parties can and cannot do and weigh the harm that may or may not occur, rather than judging hard facts based on actual events.
But in case after case, results-oriented judges have scrapped legal norms on this point using what Judge Scalia dubbed the “override machine ad hoc” of abortion.
Successful pre-application disputes do not result in laws being literally wiped out of legislation. Instead, they operate through a legal fiction established in the Ex Parte Young case that allows federal courts to prohibit state officials from enforcing contested laws.
But what if a state allowed private citizens to go to court to enforce violations?
That’s exactly what Texas did. He passed a law banning abortions for children with beating hearts, 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 getting an abortion for women attending a prosecuted clinic.
The concept of law enforcement by private individuals is more familiar than you might think. Consider 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 need have nothing to do with securing any compensation to plaintiffs.
You might be thinking that Texas law differs because it allows individuals to sue, even when their own rights are not directly impaired or at stake. It’s a good point. However, third parties already sue for the benefit (actually, on behalf of) the government with some frequency.
The False Claims Act [False Claims Act], for example, allows João and Maria da Silva to sue contractors who defrauded the federal government.
They do not 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 federal government involvement.
Texas’s genius was to apply these existing concepts and legal frameworks to neutralize the abortion industry’s most potent weapon, pre-application challenge.
Abortion clinics are now at a dead end because, on the one hand, there is no one to sue because no state official is allowed to enforce the law, while, on the other hand, there are too many people to sue because they cannot identify who, among the millions of Texas pro-lifers, will step forward to enforce the law.
That Texas relinquishes its extraordinary prosecutorial power while empowering private citizens is like an impressive queen sacrifice in chess that allows the weaker pawn pieces to set a trap for an unsuspecting king.
As a result of this brilliance, for the first time since 1973, abortion clinics in Texas are stopping mass abortions because they are unwilling to stand before a judge to justify every time they stop a child’s heart.
What a wonderful sheik.
Roger Severino he is a senior member of the Center for Ethics and Public Policy.