Deputizing Civilans: The Unconstitutionality of the Texas Senate Bill 8
On September 1, 2021, the Supreme Court upheld Texas Senate Bill 8, which has become colloquially known as the “Texas Abortion Ban.” This bill criminalizes abortions after roughly six weeks, notably earlier than most women suspect they are pregnant and employs monterary incentives to ensure Texans civilizans enforce the legislation. As explained by historian and author Leslie Reagan, the Supreme Court’s failure to block Texas Senate Bill 8 “deliberately violates the constituional protections for abortion,” which protect a woman’s right to privacy, sexual freedom, and procreation." The Supreme Court is currently debating the constitutionality of Senate Bill 8; there are many concerns that this bill violates the 1973 Roe v. Wade decision, which established a women's right to access safe and legal abortion under the right to privacy. Nevertheless, SB8 bill is extremely challenging to dispute in court because it employs an unprecedented mode of enforcement.
Contrary to the standard methods of policing and law enforcement, this bill privatizes legal responsibility by incentivizing Texans to sue clinics, doctors, and civilians who help women access abortion services. This privatization of enforcement evades standard judicial procedures utilized to challenge laws deemed unconstitutional. Ordinarily, if unconstitutional legislation is passed it is challenged in court; however, Texas Senate Bill 8 prevents individuals from challenging and subsequently abolishing this legislation because the state of Texas has deputized their citizens to enforce this legislation. This change in method of enforcement, in turn, safeguards Texas from being sued in court for the bill. This nonconformist design to enforce legislation upends America’s legal system.
On September 24, 2021, in response to the Supreme Court’s refusal to block Senate Bill 8, the U.S. House of Representatives passed H.R.3755: The Women's Health Protection Act of 2021. The bill is intented “to protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.” This proposed legislation serves as a symbolic gesture (as it is expected to die in the Senate), despite the fact that it represents the majority of Americans' opinions.
A 2021 Pew Research Center study finds that approximately six in ten U.S. adults believe that abortion should be legal in all or most cases. Despite the predominant stance amongst Americans, abortion and abortion regulation continue to be divisive debates, especially across party lines. Currently, 80% of Democrats believe that abortion should be legal, whereas only 35% of Republicans share this belief. Research demonstrates that a considerable proportion of congressional party members disagree with their party’s established position on abortion. This disparity in voters’ opinions on abortion legality is also increasing, up by 12% since 2016.
Religion also plays a dominant role in establishing one’s stance on abortion. A 2019 study which revealed 77% of White Evangelical Protestants believe abortion should be illegal in all or most cases, while 82% of religiously unaffiliated Americans disagree.
Further, one’s educational experience also impacts their views on abortion legality. Data finds that 20% of people identify their educational experience as a primary influence on their views concerning abortion. Additionally, 30% of individuals in favor of abortion legality cite their education as principal determinant. Once more, these findings indicates that many factors shape individuals’ beliefs on the legality of abortion.
In sum, although the Texas Abortion Ban is potentially unconstitutional and wholly misrepresentative of the dominant societal view on abortion legality, it is unlikely that it will be challenged by substantive progressive bills.
Haley Joyce is a Junior concentrating in International Public Affairs with a focus on Policy, and Sociology at Brown University. She is a Staff Writer for BULR Blog, and can be reached at Haley_Joyce@brown.edu.