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The Texas Heartbeat Act: Right Idea, Wrong Approach

This new law threatens all of our actual constitutional rights.


I share the objective of the Texas legislature of banning abortion in most circumstances, but I oppose the Texas Heartbeat Act because of the dangerous precedent it sets in curtailing any and all of our other actual constitutional rights.

In a series of cases dating back to Roe v. Wade in 1973, the U.S. Supreme Court has declared that, with some limitations, abortion is a constitutional right. I strongly believe that these cases were wrongly decided, and it appears that the current Supreme Court is going to revisit this issue next year. However, as much as I and many others disagree with it, the current state of the law is that abortion is deemed to be a constitutional right.

The reason that the Supreme Court has revisited this issue numerous times since Roe is that state legislatures have tried in numerous ways to criminalize abortion, at least in certain circumstances. In virtually every instance the Supreme Court or lower courts have struck down these laws criminalizing abortion as unconstitutional.

This year, the Texas state legislature took a completely new and different approach to curtail abortions in their state. Instead of criminalizing the procedure, which entails the state enforcing the law by prosecuting those who violate it, the Texas Heartbeat Act created a new civil tort in which private citizens – not the government – can bring a civil action for damages against anyone involved in performing an abortion.

By making abortion a civil tort rather than a crime, this new law circumvents the bases in Roe and subsequent cases for striking down laws criminalizing abortions.

It is this unique approach that was the reason that the Supreme Court refused last week to issue an injunction against enforcement of the law. Injunctions issued in other abortion cases were to prohibit governmental entities from enforcing a criminal law that, under Roe and subsequent cases was unconstitutional on its face. In the recent case, by contrast, the petitioners sought an injunction against private citizens who had not taken any action and were merely suspected of having an intent to do so. In other words, there was no action or party in that case for the Court to enjoin.

The Democrats and their “news” mafia allies screamed and cried that the sky is falling on abortion “rights” because the Supreme Court declined to issue an injunction against citizens who had taken no action. However, the truth is that this decision by the Supreme Court was just a momentary hiccup in the Democrats’ ability to fight this new law. As soon as anyone actually files suit under this new law, the defendant can file for an injunction against the filing parties – and, in fact, this has already happened in the Texas state courts.

As much as I share the goal of ending abortion on demand, I have to oppose this particular approach to doing it because this law, if allowed to stand, provides a roadmap for legislatures across the country to curtail any and all of our actual constitutional rights.

The Texas legislature accepted the reality that abortion is currently deemed to be a constitutional right, which is why they didn’t pass a bill criminalizing abortion. They knew that any such bill would be ruled by the courts to be unconstitutional on its face. Instead, to get around that problem, they passed a bill to make the performing of an abortion a civil tort rather than a new crime.

This was a creative idea, but what this law actually does is subject citizens to civil damages for exercising a constitutional right. This sets a very dangerous precedent: If a state can curtail the constitutional right (as deemed by the U.S. Supreme Court) of getting or performing an abortion by making it a civil tort, then what is to stop states from curtailing our other actual constitutional rights?

For example, if this Texas law is allowed to stand, then what would prevent a legislature from passing a law subjecting gun owners to civil suit merely for exercising their constitutional right to own a gun?

What would stop a legislature from passing a law creating a civil right of action for damages against anyone who exercises their constitutional right to attend a certain church, synagogue, or mosque?

Or against people who exercise their constitutional right to express opinions that some may find offensive?

None of these hypothetical laws actually criminalize the exercise of a constitutional right, but all of them use the model established in the Texas Heartbeat Act to curtail the ability of the people to exercise their rights for fear of being punished with civil damages for doing so.

For that reason, as well-intentioned as it was, the Texas Heartbeat Act should not be allowed to stand. I applaud Texas for trying to find a way to protect the lives of pre-born babies, but this particular approach sets a dangerous precedent that threatens all of our actual constitutional and natural rights.

Author: Ken Falkenstein

Ken Falkenstein is the Managing Editor of Committed Conservative and brings a wealth of experience and expertise in public affairs to the job. Ken served in the U.S. Army in the last years of the Cold War as a Russian linguist for military intelligence and the NSA. After leaving the Army, he earned his degree in Secondary Education from Old Dominion University, where he also wrote a popular column in the student newspaper. Upon graduation, Ken worked as a Legislative Aide to two Republican members of the Virginia House of Delegates. Ken also served as Corresponding Secretary of the Young Republican Federation of Virginia, managed several successful political campaigns, and managed governmental affairs operations for a local Realtor association. In 1995, Ken moved to Washington, DC to serve as a Legislative Assistant to Sen. John Warner (R-VA). While working for Sen. Warner, Ken attended law school at night, earning his J.D. with honors from the George Mason University School of Law (n/k/a The Antonin Scalia Law School). Since that time, Ken has practiced as a civil litigation attorney, including serving for three years as an Associate City Attorney for the City of Virginia Beach, Virginia. Ken previously was a contributor to the highly-regarded political blog Bearing Drift and was a weekly co-host of The Steve Batton Radio Program. In 2016, Ken ran unsuccessfully for the Virginia Beach School Board. Ken is also a former President of the Down Syndrome Association of Hampton Roads. Ken now lives outside of Denver, Colorado with his wife, Kim, and three sons, Adam, Dylan, and Joshua, who has Down syndrome. Ken’s writing is motivated and informed primarily by his concern for his kids’ future.