The Texas law, which went into effect yesterday when the U.S. Supreme Court declined to block it on a 5-4 vote. (Guess which justices were on each side. Next question: Who is buried in Grant’s Tomb?) The law bans abortions after a fetal heartbeat can be detected, which is after about six weeks of pregnancy. Roe v. Wade, the 1973 Supreme Court decision that established a constitutional right to abortion until a fetus was viable (by the medical standards of 50 years ago), would seem to preclude such laws, which other states ( Georgia, Mississippi, Kentucky and Ohio) have passed only to have them held in limbo by the courts The Texas law is the first to be implemented, in part because it approaches the issue from a clever (some might say diabolical) perspective.
The law does not make exceptions for rape or incest, as it should not: if the objective is to protect the human life of the unborn child, how that life came into being is irrelevant. It does permit abortions for health reasons, allowing a termination only if the pregnancy endangers the mother’s life or might lead to “substantial and irreversible impairment of a major bodily function.” The clever part is this: the Texas law doesn’t require state officials to enforce it, meaning that abortions won’t he halted by government action. The Texas law deputizes private citizens to sue anyone who performs an abortion or “aids and abets” a procedure. Any citizen has standing, regardless of connection to the patient, the abortion doctor or the clinic and may sue and recover legal fees along with $10,000 if they win.
This means that the Supreme Court will have to consider not only whether the Texas law in unconstitutional, but whether it can even be challenged in court, what the SCOTUS majority called “complex and novel” procedural questions. Predictably, while the majority opinion was relatively restrained, the dissenters freaked out.
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand,” Justice Sotomayor wrote, for example. “The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation…The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Is the law “plainly unconstitutional”? If Roe isn’t overturned, I would think so, the issues here are beyond my expertise.
What interests me from an ethical perspective, as it always does in this evergreen ethics controversy, is how pro-abortion advocates torture language and facts to avoid ever considering why such laws are proposed and advocated: a second human life is involved. These are laws aimed at saving lives, and that consideration needs to be part of the analysis. Pro-abortion advocates duck, weave and–this especially–scream insults and hysterical pronouncements to avoid a fair and rational approach to a classic ethics conflict. Ethics conflicts are tough, but they become remarkably easy if you pretend one of the conflicts isn’t there.
Here’s throbbing example. Craig Calcaterra is a baseball writer, who, as I’ve noted before, I would grace with a paid subscription to his substack newsletter if he would just stick to baseball. He will not, however, and today’s complimentary installment of “Cup of Coffee,” Craig goes bananas over the Texas law…and he’s a lawyer, sort-of. What follows is in a baseball newsletter…
“As of Tuesday night at midnight, abortion is effectively illegal in Texas. I say effectively because, while the law that the U.S. Supreme Court refused to stay pending appeal is styled as a restriction, its terms — no abortions, even in the case of rape or incest after six weeks of insemination — make it a functional ban as missing a period, figuring out you’re pregnant, and then getting an appointment at a clinic will eat up all of that time in virtually every case. The Texas legislature knew what it was doing. They’ll freely tell you that that’s what they were doing. I am likewise confident that the conservative-dominated Supreme Court — three members of which were appointed by a president who lost the popular vote and instigated an attempted coup against the United States government — will sustain the law, essentially overturning Roe v. Wade. This is why most of them are there in the first place. They became judges, advanced in their careers, and were selected for both their current seats and their previous ones on almost exclusively that basis. It’s the defining project of the conservative movement and they’ll be damned if they don’t take their best available shot at eliminating the right to get an abortion in America. When that happens, individual state legislatures will rush to pass blanket abortion bans. There are 30 states with Republican-controlled legislatures. There are 23 states which have a so-called Republican “trifecta,” meaning that both houses of their legislatures and their governorship is controlled by the GOP. At least those 23 will pass such laws. Many of the others will attempt to do so, looking to override vetoes from Democratic governors. Every state race in 2022 will feature Republicans attempting to gain control in states they do not currently control. Theocratic movements, and the Republican Party is, at its core, a theocratic movement now, are motivated movements.As the news of the Texas law coming into effect Tuesday night spread, I saw a lot of people angrily re-litigating past elections, proposing boycotts of Texas, and the like. I get the impulse there, but that’s all pretty unproductive. You don’t help the people who are harmed by these laws by abandoning them or by implying that it’s their own damn problem if they live in a place which bans abortion. I talk a lot about choosing where I want to live — and I do believe that these sorts of laws, over time, will lead to brain drain among younger generations and the movement of people who can more easily relocate — but most people do not have that choice, and the people who live in places run by the monsters who mean them ill do not deserve the miseries and injustices that are visited upon them. Republicans have waged a cold civil war in this country for years now, and many people are stuck behind enemy lines. And no, I do not use the word “enemy” lightly. Between their positions with respect to the pandemic, public health in general, and the health and safety of the environment, the Republican Party simply does not care whether a great many people live or die, and that is the very definition of an enemy. At the same time, we must not fall into despair. If history has shown us anything, it has shown us that people must constantly fight to keep those who mean us harm from visiting that harm upon us, and people will fight. …Donate to state legislative campaigns and organizations which mobilize their resources on the state level as those are the battlefields which will matter most once Roe v. Wade is a dead letter. If Tuesday night’s news is motivating you to do something, and if you are able, please do something constructive like that rather than fall into recrimination and despair. Fighting malevolence is never easy. Especially when it has the sort of upper hand it has in this country at the moment. But there is no choice but to fight it. There is no choice but to do whatever one can do to make this country a place that reflects our values, not the values of a callous, selfish, controlling, and privileged minority.“
I could rebut Craig’s hysterical screed (and so could you), but it pretty much discredits itself. I’ll flag just a couple of examples:
- “…the conservative-dominated Supreme Court — three members of which were appointed by a president who lost the popular vote and instigated an attempted coup against the United States…” That’s signature significance right there for someone who has allowed leftist cant and resistance nonsense to eat his brain. President Trump was duly elected, and resorting to the popular vote canard to imply that that he had any less legitimate authority than any other President is intellectually dishonest. Saying Trump engaged in an “attempted coup” is even worse.
- “…the Republican Party is, at its core, a theocratic movement now..” This is what happens when bias makes you stupid. Craig is echoing the Michael Moore “the GOP is the Taliban” chant. Even as Big Lies go, this one is disgraceful.
- Does Craig concede that any people are “harmed” by abortion? Of course not. “[T]he Republican Party simply does not care whether a great many people live or die, and that is the very definition of an enemy.” Abortion advocates don’t concede that abortion results in millions of unborn children dying.
- “Enemy”…”monsters”…”callous, selfish, controlling, and privileged minority”—this is pure ad hominem argument and appeal to emotion, the relevant emotions being fear and hate.
This is not an ethical way to have a public policy debate about a very complex issue.