A Bad Idea for a Good Purpose is Still a Bad Idea
So the Supreme Court makes a controversial decision finding that individuals have some constitutional right. But a lot of people think they got it wrong. So states pass laws trying to limit the expression of the right established by that decision. The courts repeatedly rebuff such attempts. So the states get a clever idea: instead of passing a normal law, we’ll create procedural confusion through a novel enforcement mechanism so that the courts are at least temporarily stymied in invalidating the new law.
Now a question: am I describing Texas' new abortion law or a soon-to-be-filed bill in California banning, say, semi-automatic rifles?
The answer, of course, is both. This is not to say that these two scenarios are the same (morally, legally, or otherwise). My pro-life, pro-gun friends will no doubt insist that there is explicit protection of the right to bear arms in the Constitution. To which I ask, what good are those explicit protections if we’ve established effective means to circumvent them, at least temporarily?
Some supporters of the law have argued that the oddness of its structure is an outgrowth of the oddness of the law around abortion as created by the Supreme Court. Fair enough. But that doesn’t address the foolishness of crafting a tool for the procedural abrogation of constitutional rights and handing it to the other side on a silver platter.
There is no difference, jurisprudentially speaking, between Texas' law and a law passed by New York banning hate speech, or a law passed by Rhode Island compelling Christian bakers to make cakes for the weddings of gay people. Or, more to the current point, there’s nothing to prevent Connecticut from borrowing Texas' innovation to ban protesting or praying outside of abortion clinics.
The courts would eventually get around to striking down these laws, just like they’ll eventually get around to striking down Texas' law. But in the meantime, millions of Americans would be deprived of their First and Second Amendment rights.
By playing games with the law, Texas has invited untold mischief from the opponents of the bill or rights. Their motivation is understandable (shared, even, by your humble correspondent). But their actions are reckless and unconsidered nonetheless.