The Texas Abortion Law- SB8; Clever or Ridiculous, or Both?
An interview with legal scholar, Professor Anthony Colangelo from Southern Methodist University.
(Producer’s Note) The following is a transcript from the podcast recorded on January 18th. Time codes reflect positions on the broadcast, and please excuse any errors or inconsistencies in the translation.
Richard Helppie 0:27
Hello, and welcome to the Common Bridge. I'm your host, Rich Helppie, with our guest today, Professor Anthony Colangelo from Southern Methodist University. The Common Bridge of course, is featured on Substack. Please join us for fiercely nonpartisan discussion and policy-oriented talk at Richard Helppie.Substack, of course on your podcast outlets, and YouTube TV. For almost 50 years, the law of the land established by the Supreme Court in a decision known as Roe v Wade superseded state level laws regarding abortion. And during this time, women have come to expect access to abortion services, while those opposed have favored denial of such access. Now, at the outset of this episode, I want to be real clear, we are not going to solve the abortion debate nor frankly as men, do we have the understanding necessary to opine knowledgeably on the topic itself. However, there have been some recent court cases and new laws that are bringing this matter to the fore. And so the Common Bridge will attempt to shed a little light on at least one of those new laws, specifically, Texas Senate Bill 8, captioned the Texas Heartbeat Bill. So we welcome to the Common Bridge, Professor Anthony Colangelo a Robert G. Storey Distinguished Faculty Fellow and Professor of Law at Southern Methodist University's Dedman School of Law. Professor Colangelo, thank you so much for joining us today. It's a real pleasure to have you on.
Professor Anthony Colangelo 2:05
Thank you for inviting me. So I thought what I might do is just kind of run through the law itself. You know, I've written a short piece, when it first came out that got downloaded something like 700 times in a month detailing a law and exploring different ways of challenging it. It's a quite exceptional law. We've not seen anything like it before. So what I want to do is kind of go through the law itself and explain why it's so exceptional and why to plagiarize myself, it has hypnotized so many attorneys... figure it kind of left them scratching their heads at well, you know, what is this? How can we challenge it? Is there a way and basically...
Richard Helppie 2:51
Well and to that point, most here of our audience, they're not attorneys, and I think your piece was written for a law journal, and I read it, you know, sometimes when I read those, I kind of feel like my dog, you know, I'm reading along, okay, I recognize that word or recognize that, but just so our audience knows you a little bit before we dive into that-- a little bit about yourself-- where did you grow up and get your legal education and what kind of career experience have you had?
Professor Anthony Colangelo 3:17
So I grew up in New York, I went to law school at Northwestern, where I graduated number one in my class, and clerked on the Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont. I worked at a law firm, Cleary, Gottlieb Steen and Hamilton in their New York and Rome offices--I did some international arbitration there-- and then went and taught at Columbia University in New York for two years where I got my masters and my PhD, and after that came down to SMU. I'm actually an expert in procedure and international law and international human rights and counterterrorism. I also partner with a nuclear non-proliferation organization, and I think one of the things that allowed me to bring a new perspective to this law, is that what I'm doing, what I do here, and I'll explain it to you in a minute, is I bring in the field of something called conflict of laws, which is something that is not at all on the radar of a constitutional law, scholar or constitutional lawyer to distinguish between different types of law; in particular civil laws, which are laws between two private parties, and penal laws, which are laws between the state where the state and the private party is an adversary and ultimately what I'm going to say, what I'm going to show, is that this Texas law looks a lot more like a penal law than it does a civil law. While nominally we have two private parties, one of the parties is acting as a surrogate, or deputized agent for the state. And so that is going to be key, because in order to vindicate your constitutional rights, you need to have something called state action. It's got to be the state, taking away your right. If it's a private party taking away your right, then you have all sorts of other causes of action like tort law, you know, things like negligence, negligent infliction of emotional distress, wrongful death- these are all sort of civil, civil causes of action. But, the Constitution doesn't care about that, the Constitution cares about when it's the state doing it, and I think that's a good segueway into the law itself. Unless you have any other questions.
Richard Helppie 5:45
Yeah, it is. So the the paper that you authored is called "Suing Texas State Senate Bill 8 under Federal Law for Violations of Constitutional Rights." We will publish this paper and a link to it, at RichardHelppie.com and Richard Helppie.Substack. You wrote it for the SMU Law Review forum this past September, is this paper written for lawyers or is it written for the general population?
Professor Anthony Colangelo 6:12
It's a lot more colloquial. You know, my writing in general tends to be colloquial. And this one especially so; I don't think I've had a lot of people who have read it who are not lawyers, and who have understood it quite easily. I think it's a short read. I mean, basically, what I did is the state came out with this law, I wrote the paper, I gave it to SMU Law Review, and I said, Will, you print it? And they said, Yes.
Richard Helppie 6:37
It was fascinating, because when you read about this Texas law, which effectively bans abortion upon detection of fetal cardiac activity, but it allows almost anyone to sue abortion providers they're not even a party-- like I know that there's a concept of standing-- that in order for me to bring a lawsuit against someone I have to have standing, you know, a dog in the fight, so to speak. (Professor Colangelo: Right.) So these unique characteristics like deputation of citizenry, sounds kind of deceptive. See if you can take us from A to Z and I'll interject when I have questions, because it just sounds to me like taken to an extreme case, I could be standing on a sidewalk, witness a car accident, and decide I'm going to sue who I think's at fault, even though I had nothing to do with the car wreck.
Professor Anthony Colangelo 7:26
Yeah, I mean, that's not far from the truth. I mean, so you know, just to, to outline the law, as you said, I mean, it gives any private party- anybody, right? Anybody the right to sue anyone who aids and abets an abortion during this fetal heartbeat period, which could be before the woman even knows she's pregnant, right, and recover no less than $10,000. The law is very deceptive. And so in the little article, and again, this is very short, it's like three pages. In the little article, I subdivide the deceptive devices, as I call them, into three main ways, or three main devices. And the first is that the Texas law, as alluded to earlier, attempts to take quote, unquote, the state out of the picture. So it's not the state that is depriving you of the right. It is the private individual, it is the private party suing. And that is crucially important, because typically, in order to vindicate your constitutional rights, under the primary statute, which here would be section 1983. That's the vindication of constitutional rights under federal law, we need to have what's called state action.
Richard Helppie 8:49
So let me make sure I understand that as a lay person. So if the state of Texas said we're going to ban all abortions, when we can detect a heartbeat, which would be contrary to the Supreme Court decision, Roe versus Wade, because it would require a state action to enforce--not allowed to do that. (Professor Colangelo: Not allowed to do that.) Okay, so they said, Okay, we've got to work-around. So explain... tell us how does work-around work?
Professor Anthony Colangelo 9:16
Well, I mean, the work-around is actually very, very, very clever. It's taking the state out of the picture, and it's putting that enforcement mechanism in the hands of private individuals. So it's saying, we the state are not doing anything, but we're authorizing you private individuals to sue on our behalf more or less, and it's that move that takes the state out of the picture. There's also what is very deceptive here is you can't actually sue the woman. The statute prohibits suing the woman; prohibits it, explicitly prohibits it. It says you can only go after those who aid and abet her. And why is this clever? Well, it's clever because it's her right. You know, there's another feature of this law that's kind of mind boggling. So you're the Uber driver, you drive her to the abortion clinic, somebody sues you for aiding and abetting an abortion, and you say, hey, wait a minute, what I did was perfectly consistent with the Constitution. And they say, Well, you don't have a constitutional right, you're just the Uber driver.
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