By Lofton Gray

For decades, the legal precedent created by Roe V. Wade has made access to legal abortions a constitutional right. The Supreme Court, when it heard that case in 1973, ruled that abortions must be legal and that states cannot legally stop Americans from receiving them. For nearly 50 years conservative lawmakers across the nation have tried again and again to mount a successful legal challenge against Roe V. Wade and have failed each time.

This year however the state of Texas has potentially discovered a way to not only limit access to abortions, but to bypass federal law, the supreme court, and the Constitution itself. Senate Bill #8 passed by Texas in September is not a run-of-the-mill abortion ban. If it was, it would simply state that abortions after so many weeks are illegal in the state of Texas and that the state of Texas will actively prosecute in criminal court doctors who provide them. If this was the law, it would not take long for somebody to sue the State of Texas and for the law to be struck down by Federal Courts, like has happened many times since 1973. Wrong or right, it is clearly unconstitutional for a state to enforce an abortion ban and there is a ton of legal precedent that shows this.

However, Senate Bill #8 does not grant the state of Texas the power to curb abortions. It grants the power to curb abortions to the people of Texas, stating that any Texan can sue anyone they believe has performed or aided in an abortion procedure in civil court and that if they do, they are entitled to $10,000 in damages from the defendants. Because Texas has placed the burden of enforcement of SB#8 on the citizens of Texas this means that no public official of Texas is actively enforcing the abortion ban. So, if anyone wanted to sue Texas on the grounds that the law is unconstitutional, they could not, because Texas as a state cannot be a party to such a lawsuit when it itself has not enforced any abortion ban.

If you’re pro-life you might applaud this move, and rightfully so. It’s the most restrictive anti-abortion mandate in the nation and at the moment it seems poised to survive any legal changes that it might face. A conservative leaning Supreme Court has already signaled its unwillingness to strike down the law.

But, this rosy picture turns sour when you realize that any other state might reasonably use this same legal principle invented by Texas to accomplish essentially any legislative goal. Other states now have firm legal footing to use this same language to enforce other would-be unconstitutional mandates. If the conservative supreme court grants Texas the right to use this loophole to uphold its abortion ban, how could it deny California the same right to use it for sweeping mask or vaccine mandates? They could not.

If they did, it would mean that our Supreme Court, the entity charged with being above politics and with protecting the ultimate authority of the Constitution would have essentially become a completely partisan, political entity. It would have to choose to either treat every state equally before the law or grant judicial favoritism based purely on political grounds. This would mean nothing short of the end of Constitutional authority in the United States. So, while you may support Texas’ abortion ban, the legal justification used by Texas could very well usher in an era in which any state can bypass the Constitution to accomplish, well, anything.

It is an understatement to say that we as Americans should be extremely apprehensive to see this come to pass. It would trigger, and some might argue it already has, a constitutional crisis the likes of which hasn’t been seen since the Civil War. The Constitution is supposed to be the ultimate law of the land. Its’ conception was an act of brilliance that has not been replicated in any other nation on Earth. It is our greatest achievement, it is our greatest tool, it is what ensures our unity but yet guarantees our independence. Whenever America has failed it has been because we the people have failed to adhere to its tenets and obligations. Surely, we trample upon it at the risk of our own demise. This is the lesson of American history, and the righteousness of the pro-life cause does not create an exception. An American Republic founded on Federalism and the rule of law cannot and will not survive without the Constitution’s authority being recognized, respected, and enforced. So, applaud the saving of lives that will come to pass as a result of this law, but be very wary of a future where where the Constitution is not the ultimate law of the land.