Law & the Courts

In Praise of Texas’s Abortion-Ban ‘Trigger’ Law

A pro-life protester marches during the 47th annual March for Life in Washington, D.C., January 24, 2020. (Kevin Lamarque/Reuters)
The benefits of establishing a post-Roe legal order in advance are manifold, and more states should follow suit.

Texas has joined ten other U.S. states in adopting a “trigger” law that will ban abortion in the state if Roe v. Wade is overturned. Other states should follow suit, and it is likely that at least some will.

Trigger laws perform several useful functions. The first of these is front-loading the abortion debate rather than trying to pass a bill in the wake of the Supreme Court’s overturning Roe, should that come to pass. Roe is indefensible as a matter of law, something that is clear even to many legal critics who are supporters of abortion rights. But the members of the pro-abortion camp do not care whether it is good law — they care about getting their way by any means necessary. It is difficult to say whether the Supreme Court actually will overturn Roe and its companion cases, but if five of the justices were to muster enough self-respect to do their job, it is likely that the ruling would be followed by some considerable civic disturbance and political violence, because that is how Americans do things, now. Better to have the law on the books before the riots start.

A second and related benefit of a trigger law is that it forces legislators to work out the details of a post-Roe regime in advance. There are many ways to go about prohibiting abortion and many questions to be answered: Will all abortions be prohibited? If there are exceptions, what will they be? And with what penalties will the law be enforced? Different states are going to answer those questions differently.

Texas’s law, for example, contains no exceptions for cases of rape and incest, though it does include an exception for women with physical medical conditions that would make pregnancy life-threatening. Utah’s law, on the other hand, contains rape and incest exceptions. We have 50 states for a reason and, in a post-Roe world, it is likely that we will end up with many radically different abortion statutes among the states — Texas will do things differently from Utah, and Utah will probably do things very differently from New Jersey.

On the matter of criminal penalties, Texas’s law starts in the right place, with abortionists facing fines up to $100,000, and the doctors and other medical professionals among them facing possible loss of licensure. This would put Texas roughly in line with France, that notorious right-wing dystopia, though France imposes prison terms of up to ten years for violating its general ban on abortions after twelve weeks. If our goal is to actually reduce the number of abortions performed — with the hope of taking that number ultimately to zero — revoking doctors’ medical licenses and levying significant fines may be sufficient.

The third benefit of a trigger law is that it lays down a marker — legally, politically, and culturally. Texas Democrats, whose thinking is distorted by sentimental memories of Ann Richards, convince themselves from time to time that the state is on the verge of a pro-choice backlash that never quite manages to materialize. The last great white-liberal-lady hope of Texas Democrats, Wendy Davis, made abortion a central issue of her 2014 gubernatorial campaign — and failed to break 40 percent of the vote in losing to Greg Abbott. Gallup consistently finds that something on the order of 70 percent of Americans support some restrictions on abortion — meaning that they reject the Democrats’ absolutism on the issue. A solid majority of Gallup respondents wants abortion “legal in only a few” circumstances or “illegal in all” circumstances, while the “legal in all” camp — representing the Democrats’ de facto position — comprises one in three voters, up from 2019’s one in four but still a distinctly minority position. Texas Republicans have 1,001 genuine political vulnerabilities, but taking a proactive stance on abortion is not one of them.

Of course, the Supreme Court isn’t supposed to watch election returns. But Roe v. Wade imposed abortion radicalism on the United States through antidemocratic means, and it is worth it for the state legislatures to communicate to the Supreme Court what the situation is in the nation’s democratic institutions. There is a time for antidemocratic action; that is why we have a Bill of Rights. But the Bill of Rights is silent on the question of abortion, whatever nonsense Justice Blackmun pulled out of his penumbra. The point of overturning Roe is not to end abortion in the United States — it is to allow the emergence of a democratic settlement regarding the issue. That settlement will be imperfect, but it probably (not certainly) will be an improvement on the status quo.

It is easiest to understand this as mitigation — as damage-control.

The liberationist ethic of the 1960s and 1970s has produced some very unhappy consequences, some of which have been noted over the years by religious moralists and others of which have been documented by feminists, including radical feminists, who, while they may reach different policy conclusions, recognize, in their way, the same savagery that has been so evident to conservatives. But it should be clear by now that there is no real constituency for reinstituting the old order — only a few reactionary fantasists imagine an end to no-fault divorce or a return to a norm of pre-marital virginity. Brandi Love surely is closer to the current zeitgeist on the right than is Jonathan Edwards. (I mean the 18th-century preacher; the 21st-century sleaze goes by “John” but is legally “Johnny” — and would be right at home in today’s GOP under either name.) For a free people, government is not a master instructing them how to live but an instrument enabling them to live as they like, for better and for worse. Government must ultimately accommodate that — up to a point.

And the discretionary extermination of inconvenient human beings is one such point.

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