WHEN CONSERVATIVE legal provocateur Jonathan Mitchell published his 2018 law review article laying the groundwork for Texas to ban most abortions, some of the ideas he outlined were so far-fetched that they read more like thought experiments than legitimate legal theories. One was that state legislatures could give private individuals, rather than government agencies, the right to enforce abortion restrictions and other controversial statutes—a “bounty hunter” mechanism he claimed could make laws like these all but impossible to challenge through the usual legal processes.
Another of Mitchell’s theories was even more radical: that courts don’t have the power to strike down old laws they think are unconstitutional—for example, Texas statutes enacted from the 1850s that made it a crime to help “procure” an abortion or furnish “the means” for it. Judges can only stop such laws from being enforced, he claimed. Unless legislators actually repeal them, America’s old laws never really die; they linger in a kind of limbo, automatically springing back to life if a future court issues a new, contrary ruling. They can even be enforced retroactively, he argued.
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