Wednesday, September 01, 2021

Game over for Roe v. Wade -- and constitutional rights

You may not have heard, but the Supreme Court overturned Roe v. Wade yesterday.  They did it covertly, by failing to act on Texas's devilishly clever end-run around the Constitution.  And in failing to act, they have effectively terminated the rule of law in the United States and opened a Pandora's box of vigilanteism powered by civil lawsuits, against which the Constitution can offer no defense.

Make no mistake: the unenumerated right to privacy and the concomitant right to have an abortion are still nominally the law of the land.  But no one can exercise that right in Texas any more.  And it is much, much worse than that, because in letting this law stand, the Supreme Court has effectively overturned another bedrock principle of American jurisprudence, which is that in order to prevail in a civil lawsuit, a plaintiff has to show actual damages to themselves.

We can see the future where this will lead us because there is already one notable exception to this principle on the books: the Americans with Disabilities Act, which empowers anyone, disabled or not, to bring civil suits against establishments who violate the law.  The result is a sleazy industry of spurious lawsuits, and the proliferation of swimming pool lifts that hardly anyone ever uses.

But at least in the case of the ADA, there is an actual law underlying the suits which has passed constitutional muster.  In the case of the Texas law, citizens are now empowered to sue people for exercising their constitutional rights!  It should be a tautology that this is unconstitutional.  What can it possibly even mean to have a constitutional right if the government can, by using this tactic, nullify your ability to exercise it?

But the Supreme Court doesn't see it that way.  They let the Texas law stand without comment.  And that's it.  Game over.  Your constitutional rights now exist only on paper, not in the real world, at least not in Texas.  (I don't want to quibble over whether or not Texas actually qualifies as "the real world."  You know what I mean.)

There is now no limit to the extent that this new tactic can be used to strip people of their rights.  A state legislature could pass a law empowering people to sue their fellow citizens for speaking out against the government, or owning a gun, or remaining silent when questioned by the police, or trying to vote, or simply being uppity.  On what possible principled basis could such laws be overturned now?

This is the way democracy ends, not with a bang, but with silence in the dead of night.