By Matt Kyle | Staff Writer
Last Monday, the U.S. Supreme Court heard arguments over whether or not Texas’ heartbeat abortion law, Senate Bill 8, can be challenged in court by abortion providers or the Justice Department.
Several Supreme Court justices — including Justice Amy Coney Barrett and Justice Brett Kavanaugh — expressed concerns over the enforcement methods of the law, which leaves enforcement entirely in the hands of private citizens. Kavanaugh said a “loophole” could lead the enforcement method of SB 8 to be used in laws targeting gun rights, freedom of speech or freedom of religion.
SB 8 went into effect on Sept. 1, drawing mixed reactions from Texans. Supporters rejoiced at a bill they said would protect life, while those in opposition said the bill, which outlaws abortions after six weeks, went too far.
David Folks, Rockwall junior and president of the pro-life organization Bears for Life, said he is grateful the law was passed because it has saved many lives in the state. He also said the law should protect all preborn children, not just those after six weeks.
“I would say that even the authors of SB 8 recognize that it doesn’t go far enough in protecting the sanctity of life,” Folks said. “But their goal is to protect as many lives as possible and to reduce the number of preborn children that are going to be killed through abortion. It’s very much a compromise. It is having a significant effect and reducing the amount of preborn children that are killed each year.”
Ayla Dodson-Hestand, Pasadena senior and co-president of Texas Rising, said she believes nobody should be able to tell a woman what she can or can’t do with her body. Dodson-Hestand also said that the law should have exceptions for cases of rape or incest and that the enforcement method of the law is “disgusting.”
“They’re employing private citizens to hunt and prey on other people that are going through really difficult situations — and then doing that for monetary gain,” Dodson-Hestand said. “I don’t think that anything about that is pro-life. I don’t think that is advancing anything positive for our state or for the country.”
Dr. Patrick Flavin, Bob Bullock professor of political science, said the law was written with such an enforcement method in order to circumvent potential legal challenges to the law. Typically, laws are enforced by government entities, which means they can be challenged in court. However, since private citizens enforce SB 8, a lawsuit cannot be used to block it.
“There’s no doubt that it was designed to evade or circumvent judicial review,” Flavin said. “Usually, the court gets to decide what is constitutional or not. If you think a law infringes on a constitutional right or liberty, you can sue the public official charged with enforcing that law, and you can bring the case to court. That’s the way things typically work. But when a law is designed to make it impossible to challenge in court, that takes away the court’s power.”
Flavin said the enforcement method of SB 8 could have concerning implications going forward and could be used in laws targeting constitutional rights like gun rights or free speech rights.
“Justice Kavanaugh posed the question of what would stop a state from enacting a similar law enforcing a gun restriction that would be an open violation of the Second Amendment,” Flavin said. “Because it’s not being enforced by the government — it’s being enforced by private citizens — it would be allowed to stand. Whatever your politics are on abortion or gun rights or whatever, we should be concerned about having private citizens enforce laws. It leaves citizens who feel their constitutional rights have been infringed without any legal recourse. They can’t sue in federal court, which is typically the way that, like it or not, we let the process play out. That’s what our court system is meant to do: interpret what the laws mean and whether they comport with the Constitution or not.”
