There has been so much ill-informed commentary on Texas Senate Bill 8, the Heartbeat Act, that I feel compelled to explain its provisions and defend its logic. I am the author of the bill, which Gov. Greg Abbott signed in May.
One of the numerous unfortunate consequences of Roe is that many people mistakenly believe any regulation on abortion must be illegitimate. This is not so. The Supreme Court does not have the power to declare subjects off limits to democratically elected legislatures.
Yet prosecutors from across the country—including district attorneys from Dallas, Bexar, Nueces and Fort Bend counties in Texas—have announced their refusal to enforce laws regulating abortion, even before they become law and before they’re litigated. Even if Roe is overturned, they say, they won’t enforce democratically passed abortion laws. If officials sworn to enforce state laws pre-emptively decide they won’t do it, even when the laws are passed and ratified and have not been challenged in the courts, state legislators are obliged to get creative.
Many crimes have a civil analog. Someone who commits a criminal assault, for instance, may be sued in civil court for assault and battery (recall the civil O.J. Simpson trial). Someone who steals property from another may be pursued for the civil tort of conversion. In almost every case, the person wronged, and therefore the person who brings the claim, is the plaintiff.
In the case of abortion, the wronged party has been extinguished. If we can’t depend on criminal enforcement, even if Roe is overturned, and the party who directly suffered harm cannot bring a claim, what’s left? Someone else must enforce the law.
In contexts other than abortion, citizens often sue to enforce laws that are otherwise difficult for the government to enforce through traditional channels. “Qui tam” actions, in which an individual sues on behalf of himself and the people, were enacted in the U.S. as early as the first Congress. Texas law, for example, allows individuals to sue on behalf of the state to recover money taken by Medicaid fraud.
A common objection against the Heartbeat Act warns that left-leaning states may use similar laws to punish behavior progressives don’t like. The Journal’s editorial board asks: “Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?” Those are fair questions, but Texans are not responsible for what progressive politicians in California and New York do. In any case, the right to keep and bear arms and the right to free speech are literally present in the U.S. Constitution, whereas the “right” to abortion is a fantasy spun by the ludicrous logic of Roe v. Wade.
Mr. Hughes represents District 1 in the Texas Senate.
Full story at The Wall Street Journal.