AUGUST 31, 2021 

Texas Governor Greg Abbott signed into law the Texas Heartbeat Act (Texas Senate Bill 8 of the 87th Legislature) on May 19, 2021. It will come into effect on September 1, 2021. This is reminiscent of the upcoming Kansas No Right to Abortion in Constitution Amendment of August, 2022 (Kansas House Concurrent Resolution No. 5003). Senate Bill 8 bans abortions in Texas after the sixth week; this period is when 85 percent of abortions in Texas occur. It is during this time that most women who have missed their cycle are unaware that they are pregnant. Kansas voters could, if the Kansas ballot measure passes, remove any right to an abortion in the state, much less any right to government funding. This would empower the Kansas legislature to enact more restrictive abortion laws, just like Texas Senate Bill 8.
Texas SB8 allows private citizens to sue medical providers of abortion, as well as anyone who aids or abets the woman in getting an abortion, including the Uber driver who transports her dozens of miles away over state lines; or the pilot of a private plane who transports her hundreds of miles over state lines. Combined with the permitless open carry laws in Texas, it is conceivable that a Proud Boy, for example, becomes a “fugitive abortionist bounty hunter.” What if a state legislature passed anti-excessive force legislation with a similar effect, where private citizens were allowed to sue the police department or anyone that helps the law enforcement officer or officers on the scene to engage in excessive force? What if it were excessive force specifically against under-represented groups? What if it were against Black and other non-white people? How about if, instead of having legislation designed to combat engagement in excessive force, the legislation were designed to combat engagement in systemic white supremacy?
States like Kansas, Texas and Mississippi are passing legislation that erodes settled law. Where is the political will to erode the settled law of qualified immunity at the state level?