The Texas Abortion Ruling is a Bad Sign for the Integrity of Future Elections
Would the Supreme Court overturn results?
This is an excerpt from my new newsletter’s debut entry. You can find the full version for Arc subscribers here.
If you subscribe, you’ll get all my Arc articles, plus links to anything I write elsewhere—plus full access to all of Arc Digital’s content, including my colleague Berny Belvedere’s new newsletter. Some pieces will be open to the public, while others will be members only— it’d be great if Arc could exist without funding, but it can’t— and will have members only comment sections, which I’ll check regularly.
To allow Texas to ban abortion after six weeks of pregnancy, five Supreme Court justices decided to play dumb. The ban would be clearly unconstitutional if enforced by the state, so instead Texas empowered private citizens to enforce it via lawsuits, and created financial incentives to encourage them. Justices Breyer, Roberts, Sotomayor, and Kagan figured out this obvious attempt to circumvent the Constitution, but Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett claimed not to.
Those five justices say the law’s novel enforcement methods raise complex legal questions, too much for the Supreme Court to rule on quickly. Conservative lawyers, such as EPPC’s Antonin Scalia Chair in Constitutional Studies Ed Whelan, have lined up in defense of the court’s “procedural” decision.
And maybe that’s right. Texas’s attempt to exploit a legal loophole by encouraging private enforcement could use closer examination. Is it unconstitutional, a violation of rights? Or is it technically not illegal, even if a bad idea? The judiciary’s proper function is to stop the former, but not the latter.
Given these outstanding questions, the obvious move is pausing the abortion ban’s implementation while the case works its way through the courts. But the five justices didn’t do that. Instead…