Texas’s Clever Anti-Abortion Law

abortion Texas

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.

31 thoughts on “Texas’s Clever Anti-Abortion Law

  1. I can’t comment on the law’s constitutionality — as you point out, it is beyond my expertise.

    I agree 100% about what the author of the screed you referenced wrote. It is a hyperbolic appeal to emotion without any real quality as an argument.

    Which brings me to my conclusion. Rational arguments with the Left are absolutely impossible about this topic, because apparently, none of them are capable of having a rational debate about it. All they can, and do, do, and I mean absolutely all of them, is vent in emotional, hyperbolic terms without any recourse to reason.

    It is, perhaps, that they know they will always lose the debate on the merits when life human life is an actual consideration that is not automatically subordinated to a mother’s wishes.

    And finally, my counsel is to never read a sportswriter who can’t stay on the subject of sports.

    • Because a rational debate requires considering the moral status of the “thing” growing inside of a woman, and focusing on what’s growing inside of a woman means the debate isn’t just about controlling women’s bodies. When the debate shifts from controlling women’s bodies to the moral status of the growing “something,” then your defenses of abortion fall away quickly.

      Like Jack pointed out, pro-choicers are torturing language in this debate.

  2. Over on Jonanthan Turley’s blog he posted: “Of course, such a lawsuit will not immediately end Roe v. Wade. It will be challenged on the very grounds cited by advocates. That includes the question of whether Texas is using private citizens to curtail a constitutional right.”

    The following question came to mind:
    Is Texas using private citizens to curtail a contitutional right close to the same as the federal government using private companies to curtail a constitutional right through “robust content modifiation”?

  3. “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.”

    What ludicrous legislative shenaniganry is this? On what grounds can unrelated people sue? You could make just about anything de facto illegal if you’re allowed to put a civil suit bounty on it. You could make a religion illegal if anyone can sue about the practice of any religion but the only suits that win are the ones about one religion in particular. You could take away the right to free speech, the right to bear arms, the right to privacy, the right to freedom of assembly… Somebody better nip this type of law in the bud before people start thinking it’s acceptable to use such corruption as a substitute for persuasion.

    • I agree; If you’re going to challenge Roe, challenge Roe; This deputization of citizens to snitch on their neighbors for taxpayer funded personal gain is disgusting, and sets all kinds of shitty, shitty precedents. This reeks of the kind of rules-lawyering enterprise that I routinely call out Democrats for, with warnings of dire unintended consequences;

      Well, here we go! It doesn’t even take a whole lot of imagination to see how awful this could get: What if the government of New York empowers vaccinated citizens to get $10,000 plus costs from unvaccinated people? Anyone want to take a bat on how the Texas law could pass muster that wouldn’t pave the way for the anti-vaxx tax?

      Don’t do the right things shittily, or bad people will do the wrong things shittily and blame you for it.

      • I agree, and would love to have the outcome finish the practice of deputizing private entities (hello Facebook!) for curtailing constitutional rights. I still don’t see how we get that outcome from rejecting this law, but one could dream.

        On the positive side, if this stands we will have resolved the states rights’ question forever.

      • This reeks of the kind of rules-lawyering enterprise that I routinely call out Democrats for, with warnings of dire unintended consequences;

        How very true. Creating a private cause of action without some kind of nexus of harm to the behavior in question doesn’t seem legally sound to me. The question appears to be, is unsound law constitutionally invalid?

        Thank God they didn’t just default to a substantive due process argument, I would’ve lost my lunch. But that may be what it takes to get there.

        I wonder if the conservatives have the stomach for that? It’s a big ask given the conservative revulsion at the doctrine, but as you point out, how many other actual enumerated rights could be restricted by governments providing private causes of action to parties without a nexus to harm?

        Living in interesting times kind of sucks, if you ask me…

    • The only semi-valid argument for it that I can see is that in nearly all cases, it would be impossible for a father or father’s family to prove paternity after an abortion. The act itself makes it impossible to prove who might have standing to sue on behalf of the victim, so and the law as written removes that hurdle.

      I don’t know if that’s what they argue, but it is a very unjust aspect of abortion.

      I think it’s a bad idea and a slippery slope, but I’d at least be sympathetic if that was the reasoning.

  4. I wonder why having an unwanted or unplanned for baby and putting it up for adoption is such an unacceptable alternative to abortion. It’s only nine months. People have gleefully put their lives on hold for approaching two years because of the pandemic. Tenants have been pocketing their rent money for over a year. Why not just sit tight for nine months and make an adopting couple happy? Why is abortion the only road? I wonder sometimes whether bearing a child but putting it up for adoption is more guilt generating that simply “terminating the pregnancy.”

    Is this really the hill feminists and all the other usual suspects want to die on? The right to kill babies is sacrosanct? Is that a good look?

    • I am of two minds when it comes to abortion. My left side says people have a right to privacy in medical stuff (especially from government), and an absolute right to control of their own bodies. My right side says killing humans is wrong (mostly).
      The left, generally, when it comes to abortion, shy away from recognizing that a human life is being ended, while otherwise, mostly, proclaim the sanctity of human life. The right, generally, when it comes to abortion, shy away from privacy rights, while, otherwise, mostly, proclaiming that government should just leave us alone.
      The suggestion posed here, that the fetus/unborn child be carried to term and placed for adoption, has merit. The last time I checked, there were a lot of potential adoptive parents.
      But, consider a real-world case that I am all too familiar with. The fetus/unborn child is diagnosed in utero as having Down syndrome. The list of potential adoptive parents shrinks considerably. But, the parents are opposed to abortion, the child is born, and the severity of Down syndrome is far worse than expected. The list of potential adoptive parents would be close to zero. Several surgical procedures are necessary soon after birth, significant expense in money to taxpayers and in both money and time to the parents.
      But, the parents never considered placing the child for adoption anyway.
      Advance the calendar about a decade and a half. The teen cannot communicate, although she seems to understand some things. She cannot feed herself. She cannot manage using a toilet. She has reached puberty, but cannot manage pads. She can walk, clumsily, but cannot be allowed to wander too far.
      Two grandparents are in the picture, two are not. The grandfather cannot and will not manage her. The grandmother does, but she is unable to do so for more than a day or two.
      An older daughter has moved away and now has minimal contact with the family. She may be trying to ensure she does not become the caretaker when the parents become too old to continue in that role. A son, a couple of years older than the Down child, is still at home, helps when he can, but probably will soon feel that he is being entrapped. The parents have expressed the view that the son and other daughter will care for the Down child when they no longer can.
      So, my right side is happy this human being is cherished. My left side says, WTF, this cannot be right.
      Maybe I’ve got a third side, too, one that tells me this is all on them, and I don’t even need to care one way or the other, kinda like those drone strikes we read about from time to time, those which may have wiped out a few kids along with the bad guys. We scan the story, grimace (kids for God’s sake) and quickly move on.
      I’ve strayed a bit from that ridiculous Texas law. Don’t see how that can stand. Vigilantes? Next thing you know, folks will expect businesses to enforce mask mandates and vaccination passports.

      • Perhaps reframe it this way? Any number of crippling afflictions could end up affecting a healthy adult in similar fashion to Downs Syndrome. Head trauma from a car accident at age 20. Severe autism that doesn’t present until the child is several years old. Senility. But under no circumstances do we consider killing a person who BECOMES hard to care for after birth.

        Simply because, with diagnostics and abortion, we have the OPPORTUNITY to kill some “burdens on society” early enough for it to be legal shouldn’t change the ethical equation. The only difference is the stage of human development at which the murder is done, and this distinction makes no sense. There should be no difference between taking a human life at age 20, or taking it 20 years and 6 months before that, or taking it 20 years and 6 months AFTER that.

        If you see a family struggling to care for a child who developed autism while in kindergarten, you don’t think, “it’s a shame that child couldn’t have been eliminated as soon as the autism was diagnosed.” Because that would understood as murder. But in the case of issues that developed in the womb, we are being conditioned by the commonality of abortion to think, “what a shame, they had a chance to erase that kid and no one would have been the wiser. Too bad they didn’t take it.” There is no difference in the present situation of the parents or in the value of the child’s life. So we should be aware that there is something inconsistent and wrong with thinking this way. And the legality and normalization of abortion has done this to us.

        Part of bringing a child into the world, indeed part of living, is accepting that any number of difficult, life-altering, disastrous things could happen at any moment, to either yourself or your loved ones, at all stages of life. A newly married wife could become quadriplegic in a diving accident. A husband of 50 years could develop dementia. A child at age 20 could suddenly have MS and need constant care for the rest of their life. Part of this risk has also always included the chance of birth defects or imperfections. There was never any real way to avoid these risks, other than hiding in bed and avoiding every deep connection to other humans that makes life worthwhile.

        The “compassion” of abortion is that it presents a legal avenue to killing a subset of burdensome children (not “preventing” their issues, mind, which already exist) and therefore sparing parents and society that particular subset of life-risk. You still can’t kill older children, or adults who become a burden later in life (at least not yet,) but if you can spot the problem in the womb, you can snuff that life out before it knows what hit it.

        Of course, this makes no sense if we are to hold on to any concrete understanding that murder is bad. If it’s alright to make an expecting couple’s life easier by literally ending their child’s life, there is no logical reason to deny that relief to the parents of a 5-year old who develops severe autism. Princeton bio-ethicist Peter Singer made the case for killing newborns all the way back in 1993. He was serious. And I don’t think it’s because he gets excited at the thought of euthanizing infants. He really just couldn’t escape the logic. There is NO logical, scientific, or ethical reason why killing a month-old baby is different than killing a 10-week old fetus. If you give both the fetus and the baby Downs Syndrome, the calculus is the same. If you can kill one, you can kill both. You can make the baby 1 month old or 20 years old. It changes not a thing.

        I think your compassion fat seeing the difficulty of raising a disabled child through adulthood is just good healthy empathy. It seems unfair for someone to be in that situation while others aren’t. That is why people in that situation often find exceptional support and love from those around them. And this is applicable to a thousand other trials in life that don’t offer the quick fix of socially acceptable homicide. And those trials produce not only struggle and misery, but also some of the most inspirational and life-affirming stories that humankind has ever produced.

        (Some of this sentimentality might have come from me just having watched David Lynch’s “The Elephant Man” and reading again about the real life story behind it. I can’t recommend it enough if you haven’t seen it. In fact I can’t stop thinking about it.)

        • “There was never any real way to avoid these risks, other than hiding in bed and avoiding every deep connection to other humans that makes life worthwhile.”

          In my efforts to escape this state, I’m attempting to build a world that facilitates more of that support and love that you mentioned, and those inspirational and life-affirming stories. It’s tricky, but I can’t think of anything more worthwhile to be doing.

  5. How did this get to the point that the Supreme Court declined an injunction. Wouldn’t it be customary for the district court to hear it and decide if an injunction is appropriate?

    I am frankly sick of the crappy reporting. All of it is is carefully staged to tar the conservative majority, and none of it seems worthy to describe what the hell is happening….

  6. It won’t last. I don’t see how anyone can file suit for anything if there aren’t some sort of damages proven.

    And a ban isn’t a ban if the government doesn’t pursue it.

    The value of this law is just watching how far beyond the pale the pro-abortion crowd has gotten in it’s pretzel twists.

  7. A good number of abortions are coerced, forced upon a minor by family, a girlfriend by her boyfriend, a colleague by her superior. It would be nice for these victims to have legal recourse against those who decide for them. “My body, my choice” is rather shallow when it’s often someone else’s choice.

    • Simply put, abortion was really always for men. Free sex without consequences. And the more domineering and abusive the male, the more likely he could march his girl to the clinic. There was a pretty stark decline in living standards in inner cities, by any metric, after abortion became legal. Lots of unintended consequences.

      • That’s a strange line of reasoning. I agree that abortion is in large part about free sex without consequences, but why do you think the males would be the ones facing the largest consequences otherwise, and thereby receiving the greatest benefit from the availability of abortion? They can just skip out, or at worst pay child support. The females would have to carry the child, give birth, and most of the time raise it to adulthood, all of which seem like more impactful consequences on one’s lifestyle. Maybe we have different assumptions about the sexual promiscuity and willingness to have children of different groups of abortion proponents?

  8. The closer you to get to the core of the argument, the more upset generally become. My question to pro-choicers is always: What are you killing? What it the “thing” inside of the woman that you want to get rid of?

    The Supreme Court acted like they weren’t even sure what to do with this. It’s going to make an interesting legal cause when they do decide to listen to the merits of the case.

  9. Surely any record of any medical procedure is private to be kept only between the patient and the doctor. So how could anybody know about any abortion in order to sue? Or are abortions not subject to patient confidentiality for some reason?

  10. The intellectually honest argument for abortion, which I’m still baffled most proponents don’t seem to bring up, is that a person–a sapient being–is not defined by having human DNA or a heartbeat, but by patterns of information in their brain (or whatever module they use to think with).

    There’s disagreement on whether to draw a meaningful distinction between patterns that are sapient and patterns that are subsapient–often called animals–as well as what ethical obligations sapients have to animals. In any case, proponents of abortion regard any information patterns in the brain of a human fetus as being less than sapient, and therefore not subject to the same ethical protections as fully sapient humans. For at least some of a human pregnancy, that belief would be supported by a developing brain not yet having achieved the complexity required to support a sapient consciousness. At some point, it may be that the brain is decently complex but hasn’t absorbed enough information to start forming a consciousness.
    I’ve read somewhere that developing humans may start learning sounds and linguistic phonemes while still in the womb, though, and while I haven’t investigated the studies supporting this claim, it’s a claim that must be challenged by those who would argue that unborn humans haven’t absorbed any information.

    In the past and in less wealthy countries, there is a secondary concern of whether the parents or the community are able to raise an additional child in a healthy manner. There’s a consequentialist argument in favor of abortion based on a child’s quality of life without capable parents, and the long-term impacts on a society that keeps having children it can’t care for. However, Other Bill pointed out that adoption is often a viable alternative to abortion in wealthy enough countries.

    I consider it foolish to frame the question of abortion in terms of women’s rights, because it completely ignores every serious argument against abortion and is therefore intellectually dishonest. That would be like… well, trying to frame a discussion about slavery in terms of states’ rights. Saying “stop trying to control me!” is completely dodging the question of whether or not what you’re doing is horribly unethical, which is itself horribly unethical regardless of what the answer to the question is.

    • Yes, this a thousand times.

      I have engaged people making that intellectually honest argument. It’s usually the male pro-choice advocate who invokes the insentience of the fetus. I don’t consider it a valid argument though, unless they also believe that slipping into a coma makes a person immediately devoid of their right to life. A person in a coma actually has less of a chance of BECOMING sentient than a fetus, which, if allowed to go on living, will end up sentient as a natural matter of course.

      For that matter, since the odds of a fetus becoming sentient in short order is just about 100%, should it not also be legal to kill sleeping people, who have a 100% chance of eventually waking up? They’re both not conscious, and they both will become conscious if you don’t kill them at roughly the same odds. Just how sentient is a sleeping person? What if we can be sure to kill them when they’re not dreaming?

      Then there’s the matter of whether a creature is really non-sentient if they only lack understanding at a temporary phase of development. All fetuses are genetically-complete members of a sentient and intelligent species. Does that offer them no protection? Smashing the eggs of endangered sea turtles is just as illegal as killing them, but are eggs turtles? The law treats the eggs as turtles. Science would say, certainly, they are turtles if the egg is fertilized. It seems a bit of a reach to claim that a member of a sentient species is actually something different if you catch it early in the life cycle. Sounds kinda anti-science, really. If humans went through different phases like butterflies, could we arbitrarily pick a certain form at which to deny their humanity?

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