Despite fighting a revolution over it, we seem to be getting more comfortable with politicians who act like kings. Like sovereigns, they operate as if they are immune from prosecution. And they mostly are, because there is insufficient political courage to hold them accountable.
This is a disaster. If politicians break the law when people are watching, imagine what they do in private.
I could be talking about former President Donald Trump, but I’m not. I’m talking about the 24 Utah Republicans who issued “cease and desist” letters to abortion providers last week. The letters were written on official state legislative letterhead, complete with the seal of the House of Representatives. The letters contained legalese and demands about how the recipients must behave or else be prosecuted.
There are a just a couple of problems with this.
First, they got the law wrong. The signatories claimed the abortion providers were “operating under a fallacy” of how injunctions work. But the legislators were projecting their own ignorance.
The injunction Judge Andrew Stone issued against SB 174 is still in effect. Injunctions would be meaningless if they did not pause future prosecutions for present acts; the signatories’ wacky view would violate the prohibition on ex post facto laws.
So we don’t get lost in the jargon, let me be clear: The legislators abused their power by threatening future prosecution for several acts that are legal in Utah today. This is a violation of legislative ethics, a few Utah laws and, oh, yeah, the 14th Amendment to the U.S. Constitution.
Because the signatories were “acting under the color of state law” when depriving the recipients of their due process and equal protection rights, the abortion providers could also sue each of them individually for money damages under 42 USC Section 1983.
But wait, there’s more. All appearances to the contrary, the legislators and candidates who signed this letter have zero power to enforce any of the laws they cited. By impersonating the executive branch, while disrespecting a judicial order, they also violated the principle of separation of powers. (Twice!)
You’d almost forgive them for their recklessness, if they weren’t trampling on our rights and confusing the public in the process. Indeed, creating legal chaos and staying in the limelight is likely the point.
Of course, one hopes the legislators will be held politically accountable. But, these days, individual votes get drowned out by powerful corporate lobbying and an electorate fed unbridled lies.
There are various avenues for legal recourse, but the best one is the public one — where our local prosecutors reinforce the pillars of democracy that we hold dear. Mercifully, these claims won’t be won or lost by a shouting match in the Court-of-Twitter, where the signatories and their supporters paste legal statutes that they barely understand.
Facts still matter in court. So please, I implore you to prosecute this abuse of power. This isn’t just about abortion anymore. It is about reminding our politicians that they are not kings.
Teneille R. Brown | University of Utah
Teneille R. Brown is a professor of law at the S.J. Quinney College of Law, University of Utah. The views expressed here are her own and do not necessarily reflect the view of the university.
