It is questionable to take a long look at the recently passed Texas abortion law

In this week’s “It’s Debatable” segment, Amy Hardberger and Charles Moster debate the constitutionality of Texas’ recently enacted abortion law. Hardberger is McCleskey Professor at the Texas Tech School of Law and Director of the Center for Water Law and Policy. Moster is the founder of the Lubbock-based law firm Moster with seven offices including Austin, Dallas and Houston.



It is difficult to name a more controversial issue than abortion. While this is a subject that is regularly debated now, its polarization is relatively recent. Despite the Roe v. Wade in 1973, the militarization of abortion as we know it today did not begin until the late 1980s.

Once a constitutional right has been granted, its reversal is incredibly unlikely; therefore, abortion opponents have sought increasingly creative ways to limit and ultimately suppress the law. Earlier this year, Texas took that creativity to a whole new level. Sadly, in their passion to stop abortions, lawmakers threaten the central tenants of our legal system.

At its core, Senate Bill 8 (SB 8) is a procedural hack attempting to achieve a substantive constitutional objective. While it was intended to criminalize abortion, it undermines judicial review in a way that will have deleterious long-term effects if maintained.

What is at issue are the enforcement mechanisms described if a health care provider performs an abortion beyond the six week limit. Rather than forcing state actors to enforce this temporal parameter, which is unconstitutional in current case law, it asks private citizens to comply with state orders. In addition to allowing people to bring complaints against providers who violate the law, a private citizen who “helps or encourages” a proceeding can also be prosecuted regardless of his intention. If that wasn’t shocking enough, private plaintiffs are offered a bounty for their civil lawsuits.

Allowing civil enforcement prevents the judiciary from imposing the law. It is an affront to the balance of power on which our system depends. As the Supreme Court examines SB 8, they must think beyond abortion and consider the ramifications of its approach. No matter what you think about abortion, this law must be overturned. We cannot tolerate the deprivation of our basic rights through state-sanctioned self-defense justice.


Texas anti-abortion law, whatever its statutory interpretation, honors the sanctity of human life and must be observed. He rightly provides that abortion should be banned once a fetal heartbeat is detected. Basically, he stops the killing of children as a means of birth control once and for all.

Professor Hardberger attempts to divert this debate to the mechanism behind Texas law enforcement that relies on third parties to hold abortion providers and their accomplices accountable for civil fines. Her argument is valid, but the real debate is whether abortion can be restricted in Texas. It is likely that the Department of Justice will argue that regardless of the law enforcement mechanism, it always attempts to violate the constitutional rights of women as enunciated in the Roe v. Wade (which I disagree with). There is no way to escape this critical issue which is in the foreground and we must debate it.

Roe v. Wade is a legal abomination. I compare this case to the horrific Dred Scott decision (1857) which, along with Roe v. Wade, is one of the worst Supreme Court cases ever. Recall that in Dred Scott, the High Court ruled that African Americans were the property of their white owners and were not entitled to constitutional protection. This blatant violation of rights precipitated civil war.

Roe v. Wade falls into this category and is reprehensible because he authorizes the use of infanticide as a means of birth control. It’s morally wrong in the same way that Dred Scott was despicable.

Professor Hardberger’s use of buzzwords comparing Texas law to “vigilant justice” is not helpful and only obscures the critical issues that must be decided by the court. From my perspective, like the lawmakers who formulated and passed the Texas law, I welcome any opportunity to stop the murder of unborn innocents. I am sure that historically for many years to come, abortion will be considered as immoral as slavery. If creative legislation is needed to stop the carnage, so be it.


The only diversion that takes place in this discussion is Mr. Moster’s attempt to use emotionally inflammatory language to get around the real issue. No matter how hard we oppose abortion, or any other constitutional right, our system does not allow lawmakers to pass laws that undermine the judiciary. Courts must repeal illegal laws regardless of their feelings on the underlying subject. This is what the balance of power means and it is the basis of our democratic system.

Those who wish to cancel Roe v. Wade must do so through legal means – by convincing the Supreme Court to overturn its ruling. Instead of taking this legal issue to court, the Texas legislature has played a game that has far-reaching consequences.

Mr. Moster concedes that I have a point, but the end justifies the means. The risk of “creative legislation”, as it is generously referred to above, is that it sets a binding legal precedent – not only in substantive law, but in the format and procedure of the law itself. .

Let’s look at an example of how this could play out here. This year, Chicago is on track to record the highest number of murders since 1996. Almost all of them are gun-related deaths. As Justice Kavanaugh postulated, what if Illinois passed a law banning the sale of firearms and offering a bounty to sellers? According to Mr Moster’s claims, this would be allowed because the end result saves lives despite the obvious threat to Second Amendment rights.

The personal protections provided in the Constitution of the United States are what define us as a nation. The Supreme Court is responsible for interpreting these rights. They can expand or restrict the parameters of a right as long as it is defensible by legal precedent. You don’t have to like the result, but you have to respect it. Otherwise, the Constitution is not worth the parchment it is written on.


Professor Hardberger is dead wrong with his constitutional statement that “no matter how hard we oppose abortion, or any other constitutional right, our system does not allow lawmakers to pass laws that undermine the justice system “. The last time I looked at the Constitution, it expressly authorizes Congress to define the jurisdiction of the judiciary – see Article I Section 8 and Article III Section 2. Restriction of jurisdiction by lawmakers does not violate or offend separation. powers. Defining jurisdiction does not constitute an “attack” on the judiciary.

In addition, the 10th Amendment to the Constitution provides that “powers not delegated to the United States by the Constitution, nor prohibited to states, are reserved to the states or the people, respectively.”

All of this means that creative laws like the anti-abortion legislation passed in Texas do not violate the separation of powers and work in the province of our lawmakers. Importantly, there is no express prohibition in the Constitution that would prevent Texas from exercising its right to pass an anti-abortion law based on the use of the app by non-government third parties, as the 10th Amendment of the Constitution of the United States would allow such an exercise. of power by the state legislature. Conversely, in a very interesting question which I hope will be considered by a tribunal, the 10th Amendment expressly reserves power to the “people” if it is not expressly granted to the United States. There is no power delegated to Congress that would prohibit a state government from making a law such as the Texas Anti-Abortion Law that grants enforcement power to the people themselves. It is constitutionally permissible.

There is no play in my argument, but I do agree that the professor is right about the quantum of my emotions when it comes to killing unborn children and what can only be described as a infanticide and murder. You can put any label on this activity, but it is reprehensible and cannot be justified as a form of birth control in the same way that civilized human beings cannot tolerate the killing of children for the sake of control. population.

Texas law is constitutional and will hopefully stand up to judicial scrutiny.

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