Texas’s abortion law: the Republicans get their way, at last

They finally did it, said Ian Millhiser on Vox. Republicans finally found a way of ending abortion without actually banning it. Previous efforts have fallen foul of the Roe v. Wade ruling protecting the right of all women to choose an abortion (at least until the foetus is viable). But a law that came into effect in Texas last week, known as SB8, has avoided that fate.

SB8 doesn’t criminalise abortion. Instead it authorises private citizens to sue anyone who performs, “aids or abets” an abortion after the sixth week of pregnancy. If successful, they get $10,000 from the defendant. SB8 was designed to escape review by the Supreme Court. Typically, the only way to challenge a state law is to sue the officer enforcing it (the state medical board, for instance, or police force). But with SB8 there’s no such officer, as only private citizens can sue.

The “Left’s hysteria machine was immediately cranked to 11” when SB8 came into force, said David Harsanyi in National Review. It’s ironic. For decades, liberals have hidden behind Roe, a ruling that “stripped Americans of the ability to find any compromise” on abortion, and to democratically decide laws on a state-by-state basis. Now they’re horrified by the thought of opponents using the courts against them.

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Yet two wrongs don’t make a right, said The Wall Street Journal. Conservatives should be equally as alarmed by the precedent set by SB8. How would they feel if California allowed private citizens to sue individuals for hate speech? Or if New York deputised private lawsuits against gun owners?

Texas Republicans may come to regret this gambit, said David Frum in The Atlantic. Perhaps they’re right in thinking that a voting majority in their state “really wants to see the reproductive lives of women restrained by random passers-by”. If so, US politics is set for a big change.

My bet, though, is that they have seriously overreached, he added. It may be like the prohibition movement. Between the 1850s and 1920s, Americans wrangled endlessly over how to regulate booze. Only after the prohibitionists won and their subsequent experiment dismally failed did the country at last move to “a stable equilibrium of national legality bounded by locally acceptable regulations”.

Republicans have done well out of banging the “pro-life” drum while not delivering on their threats. Now, having got their way on abortion, they may be in for a political shock.