I’m posting this for anyone who has not read the remarks in full and is still confused about what is going on and why SB8 is being called unconstitutional. I understand that not everyone comes from a background of understanding how our political system works, and I think it is important to provide the explanation for what the department of justice is pursuing for those who did not watch the news or just don’t understand much about the issue.
Attorney General Merrick B. Garland Delivers Remarks Announcing Lawsuit Against the State of Texas to Stop Unconstitutional Senate Bill 8 Washington, DC ~ Thursday, September 9, 2021 Remarks as Delivered
Good afternoon.
Last week, after the Supreme Court allowed Texas Senate Bill 8 to take effect, I said that the Justice Department was evaluating all options to protect the constitutional rights of women and other persons.
Today, after a careful assessment of the facts and the law, the Justice Department has filed a lawsuit against the State of Texas. Our position is set out in detail in our complaint. Its basis is as follows.
SB8 bans nearly all abortions in the state after six weeks of pregnancy – before many women even know they are pregnant and months before a pregnancy is viable. It does so even in cases of rape, sexual abuse or incest.
And it further prohibits any effort to aid the doctors who provide pre-viability abortions or the women who seek them.
The Act is clearly unconstitutional under longstanding Supreme Court precedent. Those precedents hold, in the words of Planned Parenthood v. Casey, that “[r]egardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Texas does not dispute that its statute violates Supreme Court precedent. Instead, the statute includes an unprecedented scheme to, in the Chief Justice’s words, “insulate the State from responsibility.”
It does not rely on the State’s executive branch to enforce the law, as is the norm in Texas and everywhere else.
Rather, the statute deputizes all private citizens – without any showing of personal connection or injury – to serve as bounty hunters, authorized to recover at least $10,000 per claim from individuals who facilitate a woman’s exercise of her constitutional rights.
The obvious – and expressly acknowledged – intention of this statutory scheme is to prevent women from exercising their constitutional righ
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Laws that compel action in principle make me nervous. It isn't that the intent of a bill like this is bad, it is in all likelihood good. But the issue is what happens when someone, in this case a police officer acts in what they think is good faith but their assessment turns out to be faulty.
For example, a police officer is attempting to arrest a suspect. Another officer observes the arrest and believes that how the officer performing the arrest has run afoul of a law such as this one. The by-standing officer steps in to restrain the arresting officer and the suspect then produces a weapon killing the arresting officer. Under review it turns out the by standing officer intervened incorrectly and that the arresting officer (now dead) was within the bounds of behavior allowed by law.
Now what happens to the by-standing officer? Should he be prosecuted for whatever murder/manslaughter type charge is appropriate? Or should he simply face the ostracization by his fellow officers? Or something else? However it goes from here this situation is a mess.
And there are a million less crude examples we could use here, like where the by-standing officer was some distance away, didn't have clear sight, etc. etc.
Failure to act legislation (especially in a real time situation) carries a lot of collateral baggage at a minimum. Seems to me a better balance to the problem this law seeks to address would be to drop failure to act leaving failure to report as the requirement. The by-standing officer today of course is free to act in the way the best intention of this legislation is directing. Hard to see how the failure to act language helps the overall situation and outcomes.
No Paywall Link: https://web.archive.org/web/20220110211313/https://www.washingtonpost.com/nation/2022/01/10/scott-baldwin-indiana-nazism-fascism/
Indiana State Bill 167:
