“Finding” Law in the Texas Heartbeat Law Decision

In the wake of the SCOTUS decision on the Texas Heartbeat Act, many accuse Texas of legalizing vigilantism. The left paints the new law as a sinister manipulation aimed at eviscerating compliance in Texas with Roe v. Wade.

Undoubtedly, the act that allows private individuals to bring a civil suit against anyone aiding and abetting an illegal abortion used a novel approach.

Many pro-life conservatives enthusiastically support SB 8, as it is known, despite its complex nature. Others express reservations, saying they do not understand the law and, therefore, find it hard to defend.

The left lies by mischaracterizing the Texas Heartbeat Act as the enactment of vigilantism. There is nothing in it that is alien to our legal system. It is perfectly in line with our long common law tradition. It is not a chaotic or anarchical legal trick but something that harks back to the very foundations of law and our common life together as a society.

Law as the Keeping of the Peace

Historically, we are heirs to a system developed from medieval customary and common law. We can trace it back to long-accepted usages and the customs of the people that were handed down by tradition over centuries. These rich traditions are still intertwined with our present legal system. This Heartbeat Act taps into mechanisms that have been in use from time immemorial.

We also come from a tradition that sees the purpose of law not just as the suppression of crime but as the keeping of the peace. Society seeks peace because it is the fruit of justice. Public immorality and crime harm the common good. Their violation of the peace justifies the intervention of secular authorities to restore it.

When the peace is broken, ancient usages prescribe ways in which public authority can enlist the assistance of any suitable person to reestablish order.

 Customary Law Was Not Made but Found

The rule of law is crucial to securing the peace. Indeed, in medieval times, the common people were the true legislators since law was based on their tried-and-true usages adopted over time.

The role of the ruling class was not to make law but to “find” it. Its task was to inquire, articulate and uncover what had always been done and believed, and apply it to the concrete circumstances.

Law was also found in natural law (part of our legal tradition at the time of the nation’s founding) and God’s law, which governs the practice of justice and secures the peace.

This tradition of “finding” law involved all whom the law affected and facilitated the discovery of creative and organic solutions that helped maintain order.

In the Heartbeat Act, the Texas legislature has not imposed its arbitrary will on the populace. It has “found” law by inquiring, articulating and uncovering what has always been done and believed, applying it to the concrete circumstances. It has creatively utilized these measures as a means of securing the peace.

The Texas Heartbeat Law as an Application of Common Law

The Texas Heartbeat Act applies this common law tradition. It uses already existing legal mechanisms to address a great disruption of the peace—procured abortion. Well aware of the insufficiency of public authorities to secure the peace, the law enlists the help of others, conferring on them lawfully delegated government powers.

Vigilantes set themselves up as the law. The Texas Heartbeat Act empowers private individuals to enforce the law. It is apples and oranges.

Thus, the Texas Heartbeat Act relies on private citizens to enforce it in civil courts. It allows them to sue abortion providers and facilitators for violating the law. Since Texas authorities are not the enforcement instrument, the law cannot be struck down through suits against state officials. The private citizens bringing suit become a lawful extension of government. All the elements of the rule of law remain intact.

The law was duly passed by the Texas Legislature and signed into effect by the governor. Hence, there can be no discussion about the law’s legislative legitimacy. In all probability, the Heartbeat Act will be emulated soon by other states.

The Common Use of Delegated Governmental Power

Most rabid opposition cites the delegated governmental powers as a novel concept bent on circumventing Roe v. Wade’s enforceability. There is nothing novel in enlisting the help of private citizens to secure the peace. Such provisions are already part of our legal traditions. They are embedded in present law.

Our legal system has numerous examples of lawfully delegated government powers.

Consider, for example, the use of citizen’s arrest. Most states have codified the common-law rule that a private person may make a warrantless arrest for a felony, misdemeanor, or “breach of peace.” Such lawful actions are not harassment, false arrest, assault and battery, although these criminal actions may present certain analogies with the use of citizen’s arrest.

Consider posses. A sheriff has the legal authority to summon the residents of his county into a posse, to assist him in keeping the peace, using force, if necessary, for legitimate ends. Some jurisdictions even criminalize the refusal to render this assistance. This lawful action cannot be compared to the anarchic crimes of a lynch mob.

Bounty hunters are another example of delegated government powers. They capture fugitives or criminals for a commission or bounty. Most of the terrorists in Guantanamo Bay were captured by this means. This lawful action is not to be confused with the crimes committed by kidnappers.

Government has always rewarded individuals for acting on its behalf in the control of pests. We see this today in the rewarded hunt of feral pigs, for example. These destructive animals disturb the peace and harm the common good. Their lawful and rewarded hunting cannot be conflated with the crimes of poaching or illegal hunting.

The sounding of the “hue and cry,” of ancient origin, required every able-bodied man to drop what he was doing and join in the hot pursuit of a criminal suspect. Those who did not join the chase violated the law. Such lawful pursuit is never to be mistaken for mob justice.

These are just a few of the many examples of delegated governmental powers. They uphold the rule of law and are an integral part of the nation’s inherited legal system. The empowering of private citizen civil lawsuits in the Texas Heartbeat Act fit seamlessly into America’s legal tradition.

The process of law enforcement under the Heartbeat Act is transparent. Private citizens initiate civil action cases using the standing and authority granted them by the State government. Their suits are brought in Texas civil courts. These suits take action against an illegal act defined in the law: The illegal abortion performed after a detectable heartbeat and without a medical emergency.

Rewarding the Defense of the Innocent

The Texas Heartbeat Act is not impartial between good and evil. Since the citizen’s action is done to stop something intrinsically evil—procured abortion—it is rewarded. The law stipulates that civilian plaintiffs are to be awarded at least $10,000, plus court and attorney costs, for every successful case.

These amounts are not collected from the aborted child’s mother but the illegal abortion facilitator. Defendants are not allowed to collect court and attorney costs from unsuccessful plaintiffs. The law’s objective is to restore the peace violated by the murder of an innocent unborn child.

Thus, the Texas Heartbeat Law upholds public morality.

Fury on the Left

Leftists’ rage underscores more than just their irritation at the efficacy of this proper use of law in halting procured abortions in Texas. The rare fury in the howls heard from the White House down confirms that the bolt hit the target.

Thanks to its efficacy, the new Texas law may well force the abortion debate back to the moral arena where the left has no hope of winning.

Source: The American TFP

© Reproduction is authorized provided the source is acknowledged.

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