Amendment to Pro-Life Bill Would Let Attorney General, Not the Courts, Decide Whether It’s Constitutional


State Rep. Luke Simons (R-Dickinson) introduced HB1546 which aims to ban what it describes as “human dismemberment abortion.”

A gruesome topic, to be sure, but my purpose in writing about it today isn’t so much the subject of the bill itself but a strange amendment added to it in committee. An effective date was added, only it’s not really a date. Rather, the bill if passed would only become effective if the Attorney General deems it constitutional.

You can see the full bill, as amended, below but this specifically is what I’m talking about:

This seems like a terrible precedent to set.

The subject of this bill can tell us a lot about the probable motivation of the amendment. One consistent gripe about pro-life legislation from opponents is that so much of it gets struck down by the courts. Passing more such legislation is a waste of time and money, they tell us. So this amendment, I suppose, is a way to address that concern?

But let’s set aside the fraught politics of abortion for a moment and look at this from a separation of powers perspective.

Should the legislative branch really be ceding to the executive branch the authority to hold a bill in limbo indefinitely?

Should the legislative branch be giving the executive branch the power to interpret the constitutionality of law which is usually the real of the judicial branch?

Should the effectiveness of a given piece of legislation really hinge on the identity of whoever might be occupying the Attorney General’s office in a given moment?

There’s also a question of the rule of law. The whole point behind writing laws down, and enforcing those laws as written, is to get away from the concept of rule-by-man. When we had monarchs, the law was whatever the sovereign said it was in a given moment. When the laws are written down, then we have the rule of law.

We’ve gotten away from that, particularly at the federal level where so much policy these days is made through executive orders which stand or are dismissed based on whoever is currently in charge of the White House.

Amendments like this are a further departure from the rule of law.

Lawmakers have a duty to vote down policies they feel are unconstitutional. If lawmakers feel that way about this bill, they should defeat it. But if the bill passes, it should be the law and the Attorney General’s office should defend it until such a time as the third branch of government might weigh in and strike it down.

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