By Aron Solomon
Canaries used to be sent into coal mines to detect carbon monoxide and other toxic gases. The canaries would be in a cage and would accompany the miners. If the canaries would show signs of illness or would die, the miners knew they needed to get out or perish themselves.
With each day that passes, it’s becoming increasingly clear that Texas SB8 is that canary and that the Texas legislature knew it would have a very short life in both the social media and political coal mine. In a gruesome irony, SB8’s lifespan might be around 6 weeks, the exact point where the law makes abortion illegal in Texas.
Last night, a federal district court finally granted injunctive relief to the federal government, which had sought this injunction a couple of days after suing Texas over SB8. In granting injunctive relief, which puts SB8 on life support, U.S. District Court Judge Robert Pitman wrote about the clear unconstitutionality of the law that denies women “an important right.”
It was intentionally designed as an idiotic bill; it’s features so grotesque that long-term survival was impossible by design. Because of its absurd bounty-hunting provisions that allow any person to sue anyone providing or abetting an abortion, SB 8 is a law that encourages exactly what the courts don’t want – frivolous lawsuits.
So why build it?
To test the national tolerance for an abhorrent “heartbeat” abortion bill. While some would have derided this as merely a conspiracy theory a few weeks ago, the idea today of floating a deeply horrific anti-abortion law to see how long it can survive in the coal mine might have been exactly what proponents of these heartbeat bills wanted in the first place. SB8 was never just about Texas or just about this law, but about beginning to define a post-Roe reality in the United States.
The reason that the Supreme Court has treated SB8 so far not as their kryptonite, but rather as an annoying cooking oil spill in their kitchen is because it is in every way a lesser case to review Roe v. Wade and Planned Parenthood v. Casey than Dobbs v. Jackson Women’s Health Organization, that the Court will hear on December 1st.
For those who think Roe and Casey will surely be overturned, you’re underestimating the desire of this Supreme Court to be seen as independent. I have written that this Court has been far less predictable to date than we anticipated it would be, so their stance to date on SB has been no surprise. And while we had plenty of reason to underestimate the potential of some jurists on this Court, they have not only held their weight but some, such as Amy Coney Barrett, are showing signs of becoming emerging stars.
What’s up next, maybe even by the time this piece is published, is for Texas to appeal to the conservative Fifth Circuit, on SB8’s inevitable journey back to the Supreme Court. In Judge Pitman’s decision, he conceded that “other courts may find a way to avoid this conclusion,” which very well may be true.
It’s going to be interesting whether the Court just decides to finally clean this spill or continue to walk around it, as they have since September 2nd, when they formally passed in cleaning up SB 8, which had become law 24 hours before.
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Strategy Officer for AMPLIFY. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, The Hill, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, BuzzFeed, Venture Beat, The Independent, Fortune China, Abogados, Today’s Esquire, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.
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