MINOT, N.D. — For the moment, please set aside your feelings about abortion.
I know the law in Texas that the Supreme Court has let stand, for now, is explicitly about abortion, but there are reasons why that law is a bad policy that have nothing at all to do with that stickiest of sticky social issues.
First, to the specifics. The Texas law bans abortion, even in instances of rape or incest, after a heartbeat from the unborn baby has been detected. That's usually around six weeks, and before women typically know they're pregnant.
That part is pretty straightforward.
Here's where things get weird.
The law, which is now in effect, is not enforced by the state. Rather, it empowers the general population with standing to file a civil suit against anyone suspected of helping a woman get an abortion. Presumably, that would include everyone from an abortion doctor to the Uber driver who gave a pregnant woman a lift. Anyone successful in these suits gets $10,000.
If the State of Texas wants to ban abortions after roughly six weeks, why wouldn't the State of Texas enforce that law? Because the State of Texas doesn't want to get sued for enforcing it.
By leaving enforcement up to the masses through a sort of bounty put on women seeking an abortion, who can be sued?
"The legislature has imposed a prohibition on abortions after roughly six weeks and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime," Chief Justice John Roberts wrote in a dissent to the 5-4 decision, adding that he would have enjoined the law so that the question of whether a state can avoid responsibility for enforcing its own laws can be considered by the courts.
Pro-life Americans are cheering this situation, though it's not really a victory. "The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden," the majority wrote in an unsigned opinion.
"In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit," the majority opinion adds.
The Justices haven't upheld the law on its merits; they've only declined to block the law from taking effect.
The merits of the law are significant, as Justice Roberts notes, because they're unusual in a way that has little to do with the fraught abortion issue.
Let's remove the abortion issue from this discussion and, to illustrate just how problematic this law is, insert another.
Imagine if the State of North Dakota passed a new law regarding the environmental regulation of oil development but, because the state wanted to avoid litigious entanglements, left enforcement of that regulation up to the general public. Anyone from Joe Sixpack to the armies of well-funded environmental law now has an open season to flood the courts with lawsuits seeking to enforce environmental regulations.
See the problem?
The government makes the law through the democratic process, and then it enforces the law.
Texas is attempting an end-run around that simple premise, and it's a bad idea, whatever your stance on abortion.
To comment on this article, visit www.sayanythingblog.com
Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at email@example.com.