The Wall Street Journal’s editors have posted an uncharacteristically weak editorial on the Supreme Court’s refusal to block Texas’s fetal-heartbeat law from going into effect. The Journal’s editors concede that the five-justice majority correctly decided that the plaintiff abortion providers did not have a case for sundry procedural reasons. Nevertheless, they join the chorus of center-right strategists who maintain that, however well-meaning, the curb on abortions is a “blunder” that will ultimately lose on the merits while “hand[ing] Democrats a political grenade to hurt the anti-abortion cause.”
I’d respectfully suggest that the editors are overthinking it. Their analysis is wide of the mark.
To begin with, the Journal’s editors point out that the Texas law would render illegal pre-viability elective abortions that are permitted by Roe v. Wade (1973) and Casey v. Planned Parenthood (1992). As the editorial acknowledges, however, the High Court already has on its docket for the term that begins a month from now the Dobbs case, involving a Mississippi curb on pre-viability elective abortions after 15 weeks. Given that the justices will necessarily revisit Roe—as revised by Casey—in Dobbs, the fact that the Texas law forbids that which Roe/Casey permits does not necessarily mean the Texas law is infirm.
The Journal is correct that the Texas law does not expressly specify exemptions to terminate pregnancies attributable to rape and incest. It should be noted, however, that rape and incest are not relevant factors in at least 98 percent of abortions. (The Guttmacher Institute has estimated that rape accounts for about 1 percent of abortions, and incest about 0.5 percent.) The act does bar a male who impregnated the abortion patient through an act of rape or incest from bringing a lawsuit under the statute, but it is true that no one else is subject to this bar. The law also provides an exemption if a physician performs an abortion under the belief that a medical emergency exists, but, though it defines a number of pertinent terms, the statute fails to define “medical emergency.” As I understand it, this concept is broadly construed under Texas law, but it is unlikely to include non-life-threatening physical injuries or mental anguish attributable to a rape/incest pregnancy.
All that said, the Journal’s emphasis on the absence of a rape and incest exemption is indicative of the editors’ prioritization of the political implications of the law over its purpose to protect unborn life.
Rape and incest exemptions in abortion restrictions have always been more politically appealing than logically sound. The rationale is that, as noted above, the exemptions green-light only a tiny percentage of abortions while exhibiting compassion for the terrible plight of women victimized by such abuse; thus, they are sensibly said to be a practical and political price worth paying in order to enact restrictions that would protect the vast majority of unborn children.
Nevertheless, the basic point of a fetal heartbeat law is to focus on the patent humanity of the unborn child. The rape and incest exemption would thus defeat the law’s express purpose.
Whatever the political appeal, it would be internally contradictory for the Texas law to posit that an unborn child lacks sufficient human dignity to warrant protection if the child was conceived through an act of rape or incest. Yes, the woman is the innocent victim of the former enormity, and often the latter; but so is the child. If human life begins at conception, then aborting a human life after the detection of a heartbeat is no more justifiable in a rape or incest situation than in any other situation. It is no more justifiable prior to live birth than it would be after live birth — and even in our depraved times, no one is contending (at least not yet, not aloud) that it should be permissible to abort a child after birth in a rape/incest situation. (The Texas law expressly finds that “pregnancy” is the commencement of a “developing human offspring,” and starts at fertilization; and that fetal heartbeat is a “key medical predictor that an unborn child will reach live birth.”)
Weirdly, the Journal argues: “Pro-life groups have spent nearly 50 years arguing that abortion is a political question to be settled in the states by public debate. Yet now in Texas they want to use the courts via civil litigation to limit abortion.” To the contrary, the political representatives of the people of Texas passed a bill, which the elected governor signed into law, after public and legislative debate. That is exactly how states are supposed to settle political questions such as abortion. Once a law is enacted, it is standard procedure for claims that the law has been violated to be resolved in court, whether in civil or criminal litigation, by judges applying the statutory law, not unaccountably creating standards out of thin air as Roe did.
Like the Journal’s editors, I am no fan of the Lone Star State’s attorney general, Ken Paxton. But their parting shot at him is a wild miss. (Paxton “and his Texas mates are leading with their chins on abortion. How about thinking first?”) What is at issue here is a statute enacted by law, not a frivolous lawsuit dreamed up by Paxton, such as the one in which he tried to contest other states’ 2020 election results. In fact, Paxton not only took no enforcement action regarding the Texas law but is prohibited from doing so by the law’s express terms, which is why the Supreme Court declined to entertain the abortion providers’ attempt to challenge the law by suing him.
In the same vein, the Journal’s editors complain that the law was structured “in a slippery way to duck federal judicial review.” That is fatuous. To repeat the observation that the editors make but then distort, “Pro-life groups have spent nearly 50 years arguing that abortion is a political question to be settled in the states by public debate.” Pro-life conservatives believe their argument has been illegitimately thwarted by activist progressive federal judges who, under the guise of interpreting the Constitution, have usurped state sovereignty and democratic self-determination. The Texas law, by following the federal jurisprudence that controls when courts have jurisdiction over a case or controversy, is designed to prevent left-wing judicial activists from stopping a legitimately enacted state law from taking effect.
It is all the more surprising to find the editors making such an illogical complaint when, in filing the federally baseless claim that the Supreme Court rejected, the abortion providers sued a Texas judge and court clerk in an outrageous effort to bar state courts from entertaining lawsuits based on the state law. The Texas law encourages the filing of lawsuits (albeit in the state courts), and poses not the slightest obstacle to federal lawsuits based on claims that concrete applications of the statute have violated some cognizable federal interest. It was the abortion providers who were trying to duck judicial review — even though such a state lawsuit is what they would need in order to have a viable federal case.
Finally, the Journal is instinctively displeased by the law’s enforcement mechanism: private civil lawsuits against providers who allegedly violate the statute, as well as their aiders and abettors. But, besides doing nothing, what alternative would the editors propose? Criminal charges against abortion providers, or women who seek abortions? Crushing investigations followed by civil actions of the type used by the Justice Department to extort compliance with the Left’s fetishes?
This is not a situation where legislators had the luxury of tabula rasa, where they could structure their ideal abortion restriction. State lawmakers were navigating a minefield of progressive activism, led by federal judges. With reasonable restraint — damages capped at $10,000, along with strict limits on attorneys’-fees compensation — they have made a monstrous action illegal. And liability, let’s remember, is triggered only if a physician violates the law by terminating an innocent life. How odd, under those circumstances, to suggest that the problem is the prescription for bringing the suit rather than the atrocity that prompts the suit.
In any event, the Journal’s analogies in this regard completely miss the point. They ask, “Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners?” Hate speech and gun ownership are protected by the Constitution, by both the express terms of the Bill of Rights and clear Supreme Court precedents, so of course states could not constitutionally delegate private parties to sue Americans for engaging in those activities. In stark contrast, the crux of the abortion debate is that the action is not constitutional; rather, a rogue Supreme Court created the “right” out of whole cloth in an exercise that had no mooring in the Constitution, as even abortion supporters who are honest legal analysts will admit.
Because Roe, as a matter of constitutional law, is a travesty, courts have been forced to shore up its crumbling foundation from the first. Casey could only uphold its “essence” — the supposed right to an elective, pre-viability abortion — by cashiering what passed for its reasoning, and did so with obvious misgivings, by the barest of margins, and by a formula that has proved to be nearly as capricious as that which it supplanted. As a result of Casey’s concession that states have compelling interests in the protection of human life and the safety of medical procedures — and precisely because there is no fundamental right to abortion, which is thus a matter meant to be left to state regulation — the Court’s abortion jurisprudence has encouraged states to experiment with forms of restriction that balance the interests in human life’s protection against interests in its termination. Abortion, then, is nothing like the Constitution’s explicit guarantees of free speech and firearms possession.
I am not a fan of Donald Trump’s “if you want to beat Democrats, you have to be Democrats” style of tactical politics. But there is something I admire about the Left: When a matter of fundamental policy belief is at stake or achievable, progressives go for it proudly even if it costs them. When they were positioned to enact Obamacare, they steamrolled ahead, knowing they’d suffer defeats in a few election cycles. They believe that socializing health care is a matter of core principle; political fortune, by contrast, is transitory, so they figured they’d not only regain the political upper hand eventually but then be in a position to build on Obamacare — which they are now poised to do, in ways that would have seemed unfathomable when it was enacted a decade ago.
For conservatives and pro-lifers, abortion is a matter of core principle, not tactical politics. If we can save unborn children, the downside of saving Joe Biden from steeper polling declines is a risk most of us are willing to run.