The U.S. Supreme Court's decision this past week not to interfere with the state's strict abortion law, provoked outrage from liberals and cheers from many conservatives. U.S. President Joe Biden assailed it. But the decision also astonished many that Texas could essentially outmaneuver Supreme Court precedent on women's constitutional right to abortion.
The ordinance shields Waskom from lawsuits by saying city officials can't enforce the abortion ban. Instead, private citizens can sue anyone who performs an abortion in the city or assists someone in obtaining one. The law was largely symbolic, however, because the city did not have a clinic performing abortions.
Though Hughes would not assign credit for Texas' approach to a single person, saying many lawyers and law professors advised on the legislation, ultimately S.B. 8 followed the Waskom model in terms of how the law is enforced. The private right-of-action wrinkle envisioned by Mitchell has so far kept challenges to the law from succeeding.
University of Chicago law professor William Baude called him a "born law professor," "creative and knowledgeable." "The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large," he wrote. "The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime."
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