The Washington Post Sunday
A precedent for Texas’s law
In arguing in his Sept. 7 Tuesday Opinion essay, “Texas shows why Roe v. Wade needs to be overturned,” that Texas’s antiabortion law should lead to overturning Roe v. Wade, Notre Dame law professor O. Carter Snead asserted that citizen suit provisions in environmental laws such as the Clean Water Act and the Endangered Species Act are the inspiration for the Texas law’s empowerment of citizens to sue anyone who assists a woman in obtaining an abortion after six weeks of pregnancy. The comparison is inapt.
Environmental citizen suits are designed to allow citizens to step in when the government fails to act to protect the public from harm. Most such provisions require citizens to give federal agencies 60 days notice of their intent to file suit, in the hope that government will step in first to address the harm. In a thus-far-successful effort to avoid Supreme Court review, Texas has expressly prohibited state officials from taking action, transforming citizen suits into a system of vigilantism and bounties.
The more apt historical model for the Texas law is the Fugitive Slave Act of 1850, which, through bounties, vigilantes and compulsion of individuals and government officials, forced enslaved individuals who had managed to escape states such as Texas back into bondage. The Fugitive Slave Act, together with a racist Supreme Court that refused to recognize the constitutional rights of enslaved people such as in Dred Scott, so divided the nation that it led to a bloody civil war. Let’s hope that Texas and today’s Supreme Court majority don’t lead our nation to a similar disaster.
Bob Irvin, Olney