Thread by @DigDinos

Howdy y'all. I'm here to talk about TX SB8. This is really, really, important, so buckle up, and please read the whole thread.

This is not important because it's about abortion. Even if you believe all abortion should be illegal, you should be opposing this law.

Why?

Well, it establishes the ability for a state's legislature to supercede the highest court in the land and the US Constitution, it challenges our right to privacy, and it creates a dangerous precedent for unconstitutional lawmaking.

Let's dig into that a little more

First and foremost, this law does seek to overturn Roe v. Wade, but the part of Roe being challenged is not protection of abortion access, but the right to privacy. In fact if Roe still stood as it did in 1973 TX could make a convincing argument for the legality of most of SB8.

But we aren't in 1973, and as you may be aware, Roe v. Wade was partially overruled (and here's where I wish Twitter had better formatting options).

For those of you just hearing about this, well... if you don't know, now you're about to know.

Although this isn't about abortion, you will need to understand the history of US abortion legislature to understand the issues with Texas' law.
A little history here: In 1992 Planned Parenthood v. Casey sought to revisit the abortion argument in light of medical advancements.

Roe v Wade argued a few focal issues,
1.The right to privacy under the due process clause of the Fourteenth Amendment
2.The state's interest in protecting women's health
3.The state's interest in protecting prenatal life

This was balanced by tying the state's ability to restrict abortion to the trimester of pregnancy. Roe also held that laws restricting abortion were to be evaluated under 'strict scrutiny' i.e. if challenged they must provide proof of a "compelling state interest" to stand.

The state's interest in the potential for human life would be sufficiently compelling, with the trimester framework to establish exactly how compelling that argument would be.

So back to Casey v. PP - it's not the 1970s anymore and trimesters of pregnancy are perhaps outdated for judging that interest in potential human life. Casey overturned two main facets of Roe v. Wade

1.Trimester framework is replaced by 'point of viability' i.e. The state can restrict the termination of pregnancies which may be able to survive outside of the womb (so long as laws exempt pregnancies which endanger life or health). This balances the same 3 interests of Roe.

2.Strict scrutiny is replaced by undue burden. No law is constitutional which poses a substantial obstacle to the termination of a pregnancy before it reaches fetal viability.

That second part is what is important to this case.

Regardless of how compelling the state's interest may be, if a law places substantial obstacle to abortion access before viability, it is unconstitutional. So re: viability there's a 0-10% chance of survival for a baby born at 22 weeks, this jumps to 10-35% at 23 weeks.

Anything before 22 weeks is essential unviable. Therefore abortion restrictions that pose "substantial obstacle" to abortion access before 22 weeks are unconstitutional, as per Casey.

Now that we've established the history of how the supreme court has interpreted the constitution regarding this issue let's pivot back to Texas.

Texas #SB8 Section 171.204 reads "a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child"

the only exception to this is Sec. 171.205. “EXCEPTION FOR MEDICAL EMERGENCY; RECORDS. (a) Sections 171.203 and 171.204 do not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter."

This law prohibits physicians from performing abortions after fetal heartbeat, typically detected at 6 weeks, even before viability. That is explicitly unconstitutional as defined by Casey v. Planned Parenthood in 1992.

The bill opens with "The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113 (1973), that prohibit and criminalize abortion unless the mother's life is in danger."

Need I remind you that Roe v. Wade was a case brought against the state of Texas's abortion laws?

So to summarize the issue here - Texas has just passed #SB8 a law that is categorically unconstitutional, and included in it a statement that they actually did not ever repeal the previous laws which were struck down by the Supreme Court.

Why should you be mad?

The state of Texas has established that its legislative body holds higher authority than the Supreme Court of the United States, and the United States Constitution.

‘But wait! States have rights!'

May I direct you to the Tenth Amendment which enumerates those? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Nor. Prohibited. By. It.

Roe v. Wade established Texas's abortion laws were unconstitutional under the 14th Amendment. Casey v. Planned Parenthood held the ruling that the 14th Amendment applied to abortion before viability. (We'll get back to the 14th Amendment in a minute.)

Thus the power of the state to pass legislature which places substantial obstacle to the ability to terminate an unviable pregnancy is prohibited by the US Constitution as held by the US Supreme Court.

Texas has just violated the US Constitution's Tenth and Fourteenth Amendments with the enacting of this law.

Regardless of how you feel on abortion, this is scary.

This state has said 'actually we supercede SCOTUS' and until this law is challenged, they're correct.

This same principle could be applied to overwrite anything protected in the constitution. As of today, Texas has set a precedent to disregard the constitution.

Now back to the 14th Amendment, and that whole overturning Roe business. Roe v. Wade was the case which introduced constitutional right to privacy through its interpretation of the Due Process Clause of the Fourteenth Amendment

the Due Process Clause of #14A is, as follows,
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law"

Roe interpreted deprivation of liberty to including violation of privacy by the State, without due process of law. This established that the government cannot infringe upon your privacy.

While previous cases (specifically Griswold v. Connecticut and Pierce v. Society of Sisters) had expanded the range of civil liberties protected under the 14th, Roe established precedent for the right to privacy as an interpretation of liberty.

It also established early abortion as a matter of privacy. It also, quite importantly, established that the 14th Amendment covered the right of physicians to practice medicine without state interference.

Which is specifically prohibited in #SB8.

So the Texas law directly violates the 14th Amendment. And seeks to overturn Roe v. Wade, which would overturn the right to privacy from the government. This is not about abortion. This is about privacy.

The due process clause in the 14th Amendment also protects you from having unlawfully acquired evidence used against you at trial under the same protection of liberty. Overturning Roe erases constitutional protection of privacy.

Overturning Roe sets the basis to erode the definition of 'liberty' as the government sees fit. Roe v. Wade is the lynchpin here, and Texas just pulled it.

That should scare you.

That should bother you.

As of today we have established precedent for a state to overwrite pieces of the constitution as it sees fit, and take away civil liberties without the consent of the people governed.

The claim that this law is exempt from the reach of the constitution because it concerns the ability for private citizens to pursue civil action against those who 'aid and abet' abortion, is baseless.

#14A reads "No State shall make or enforce any law... nor shall any State deprive" very clearly no law shall be made, and no action taken to deprive these rights. Regardless of the enforceability of these laws by the state, they are unconstitutional.

If we open the doors to unconstitutional laws being enacted through civil suits then we have essential completely eliminated the constitution.

Texas has just established precedent to disregard the US Constitution when writing laws not related to criminal charges.

Outlaw anything you want, and pay the people ($10000/case and legal fees waived for #SB8) to act in lieu of the state bringing cases to court. (This gets into the separate issue just argued in South Dakota about the legality of individuals as state actors in civil cases as well.)

So to summarize, this law is blatantly unconstitutional, directly states it disregards the Supreme Court's decision, sets up a case to eradicate our right to privacy and errode our civil liberties, then attempts to circumvent the Constitution by paying citizens to enforce the law

I deeply understand the desire to end abortion, and the desire to protect human life through the law, however this law does far more harm than good.

SB8 seeks to violate the only constitutional amendment which specifically protects our right to life.

To my friends in Texas I urge you to call your representatives and express that you do not support this legislature.

Even if you are against abortion, if you are for life and liberty you need to oppose this law.

Sources:
constituteproject.org/constitution/U…
supreme.justia.com/cases/federal/…
supreme.justia.com/cases/federal/…
web.archive.org/web/2019062012…
ncbi.nlm.nih.gov/pmc/articles/P…
google.com/amp/s/constitu…
legiscan.com/TX/text/SB8/id…

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