Partha Chakraborty is an Indian-born immigrant; a naturalized US Citizen since 2018. Educated in India and at Cornell University, Partha is currently an entrepreneur in water technologies, Blockchain, and wealth management in the US and in India. The views expressed are his own.
Sometime around May of 2005, my wife entered the room with her eyes fixed on a thermometer-like object in her hand. It says Positive, she said. Cool, I replied. We hugged, blurted out in unison that we have to find an obstetrician now, and turned to the Web to research specialists together.
The birth of our son was the best thing that happened to us, and we make sure he knows that. Yet, the news of his arrival was shorn of drama. Each of us individually has longed to be a responsible parent ever since we can remember, and each was ready to be a single parent if need be before we met each other. In each of our previous relationships, we were vigilant to avoid chances of pregnancy, simply because we were not ready enough for any number of reasons. Through our own courtship, and even after marriage, we scrupulously took protection because the timing was not right, yet. Each of us knew that parenthood is the prize we were working towards, dearly, but we saw no virtue in it being “on the spur of the moment”, or worse, unplanned.
That morning in May 2005 there was no drama precisely because we were expecting to expect. We keep wondering what it would be if we were not expecting to expect, despite all the precautions.
For thousands of women in the State of Texas this September, the right to provide for an answer has just been taken out of their hands. The Texas Heartbeat Act, or SB8 as it is commonly known, takes a very novel approach to implementing a prohibition on abortion after six weeks of pregnancy. US Supreme Court declined to block the law last week and it went into effect, even if it clearly violates precedence of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) by making abortion illegal without exceptions for rape and incest. With at least six other states eyeing similar measures, it is apt to fear the battles over abortion are about to be relitigated – back to 1972 all over again.
Architect behind SB8 is Jonathan F. Mitchell, a former law clerk to Justice Antonin Scalia and a law professor by day, he was Texas Solicitor General under Rick Perry. Mitchell helped draft the bill, pro-bono, at the encouragement of Texas State Senator Bryan Hughes (R), Chair of Senate State Affairs policy-making committee. His mandate was to create a heartbeat law that will survive court challenges that other states’ laws did not. His idea is “Writ-of-Erasure-Fallacy”, a term coined by Mitchell in 2018, that postulates that a law can be constructed to “enable private litigants to enforce a statute even after a federal district court has enjoined the executive from enforcing it.” Put simply, vigilantes, in their private capacity, are enforcing a law thereby absolving the executive. In California v. Texas (2021) US Supreme Court subscribed to the idea by dismissing Texas’ challenge to Obamacare after finding that the Feds were not the ones enforcing.
SB8 utilizes the idea to the fullest, and most devilish, extent. SB8 puts ordinary Texans, exclusively, in charge of enforcing prohibition. Ordinary citizens are authorized to sue anyone who performs, aids or abets an abortion after six weeks, and they are entitled to ten thousand dollars from the plaintiff, plus legal costs. Defendants, even if they win a case, are not permitted to ask for any damage or legal cost from the plaintiff. Multiple parties can bring lawsuits against the same defendant for the same occurrence, but only one can win the ten-thousand-dollar prize. There is no limit on the jurisdiction, so jurisdiction shopping is definitely possible. In its defense before the Supremes, Texas argued that abortion providers lack standing because the State is not the one enforcing it, and it was deemed technically correct. “Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves,” says their unsigned opinion, citing the same California v. Texas (2021).
That, however, does not make it legally secure. The current case was part of a shadow docket, though plaintiffs “raised serious questions regarding the constitutionality of the Texas law at issue”, the majority opined. “We stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit” and the Court’s order “is not based on any conclusion about the constitutionality of Texas’s law.” In a possible return to the full docket, questions of precedence will most likely weigh against SB8, thereby invalidating it.
This technical win by abortion opponents is an almost certain clear loss for Republicans, opines the Wall Street Journal. I agree. Even if Republicans refuse to admit it, the protection accorded by Roe v. Wade is as close to the bread-and-butter issue as it gets for majority suburban voters, a constituency Republicans lost big in 2020. Invalidating Roe v. Wade in Texas in such an egregious manner raises legitimate fear as to what Republicans are willing to, and can, do if in the majority. Already in California, the tide in the recall battle seems to have turned in favor of incumbent Governor Newsom after months of him walking on edge. In deep-blue states like California or New York there is already momentum in favor of using the same legal theory, and similar implementation tools, in favor of issues like gun control, among others. Republicans now face a battle they can never win – if SB8 is not invalidated by 2022 mid-term and state elections, it is going to be a battle cry for the newly disenfranchised women voters, if SB8 is already brought down it gives Democrats a wind behind their sail. SB8 will surely be a battle Republicans will regret having started when they lose the war in 2022, and likely in 2024.
There is an epilogue to the story I started today’s column with. After we broke off our hug, I told her something to the effect that “Baby, it is your decision. Whatever decision you take, I will support it” and she immediately replied to the effect that “I am having this baby”. I never doubted her answer, and she never doubted my capacity to accept her decision, come what may and each knew the other’s answer. Still, it was important for me to ask, and it was important for her to reply as such.
Because we have primarily accorded the duties – obligations and burden – of child-rearing to women beyond what biology demands, in absolute, we have made abortion a women’s issue, almost exclusively. It was not so between my wife and I – she knew I would ask her opinion but would expect her to answer in a certain way, and she knew I knew she knew it. It was made possible by her confidence in me being a ready, willing and able father from what she had seen in me before. You can call it an act, but this was a very important part of our joint duty of bringing a baby to earth, going all the way to the very beginning of the thought of it.
If I can leave jagged little pills of wisdom, and expectation, for my son, the assortment will surely include expecting him to go through the same act. In a parallel world, I would wish the same of every man but I have resigned myself to living in only one. Sad.