The Week

•“No Tax Breaks for the Met” would have been a bolder fashion statement.

•Democrats are trying to get gargantuan changes in social policy through without a filibuster by including them in a “budget reconciliation” bill. They are seeking $3.5 trillion in added spending over the next decade, an amnesty for illegal immigrants, an end to restrictions on abortion funding, an expansion of tax breaks that disproportionately benefit high earners in blue states – and, of course, a slew of tax increases to pay for much of it. But there are plenty of chances for the bill to unravel. The Senate rules may block the amnesty. Rural Democrats seem already to have limited tax increases on inheritances. And then there’s Senator Joe Manchin of West Virginia, whose vote the Democrats can’t spare. He says that households receiving the child credit should be required to work and that abortion should stay unfunded, and reportedly wants to keep the whole package no larger than $1.5 trillion. A lot of our national politics, to say nothing of our fiscal health, now depends on whether he means what he says.

•California’s Democratic governor, Gavin Newsom, survived a recall vote by a two-to-one margin. The state’s dire year – COVID, forest fires, homelessness, shoplifting as an unprosecuted crime – produced enough ballot signatures to put him at risk. But a Newsom spending blitz – maybe going maskless to dinner with donors in Napa was the right call – and relentless messaging that his main GOP opponent was a Trump stand-in saved him. Talk-show host Larry Elder, the favorite of the GOP base, stumbled in the home stretch by suggesting, à la Trump, that there might well be “shenanigans, as there were in the 2020 election.” (Trump himself claimed that the election was “probably rigged.”) Elder was subjected to grotesque abuse: depicted as an avatar of white privilege (he is black); egged at a campaign appearance by a white woman wearing a gorilla mask. But what good are GOP complaints if the result is predetermined? There was a former Republican officeholder, San Diego mayor Kevin Faulconer, in the race, but GOP voters preferred pizzazz to experience, and in the end got neither.

•President Biden acceded to demands from the families of 9/11 victims for disclosure of secret government documents that shed light on a possible Saudi-government role in the 9/11 attacks. The still heavily redacted FBI documents relate that, upon entering the United States, Khalid al-Mihdhar and Nawaf al-Hazmi, who eventually joined the jihadists who slammed Flight 77 into the Pentagon, received extensive support from two Saudi officials: intelligence agent Omar Bayoumi and diplomat Fahad al-Thumairy. The assistance included lodging and logistical and financial aid. The disclosures bolster a body of evidence that our government and the 9/11 Commission significantly downplayed the Saudi regime’s connection to the attacks as part of an effort to prevent the fall of the conflicted but mostly pro-American royal family to radical elements. The regime has become more overtly anti-jihadist, but our fraught alliance is on thinner ice with Biden’s reckless overtures to Iran, the Saudis’ bitter rival. Some neighborhood.

•Madison Cawthorn, in a talk streamed by local supporters, called those being held for the January 6 Capitol riot “political prisoners.” J. D. Vance retweeted the line, with the comment “Correct.” It is odd that a man who is a congressman and another who aspires to be a senator should be so blasé about mobs surging through the Capitol on the day that Congress performs its Twelfth Amendment functions; or so scornful of the judicial processes, sometimes cumbersome, used to investigate and judge them. It is an offense to freedom fighters from Cuba to Hong Kong who have been seized without warrants, held without trial, tortured into false confessions or to the point of death, to see their status appropriated for social-media clicks.

•Chris Christie made big news in February 2016 when he endorsed Trump for president – the first of the other Republican candidates to do so. He made a fair amount of news recently when he gave a speech at the Reagan Library in California. Christie never mentioned Trump’s name, but he talked about him and his movement: “Stop pretending we won when we lost” (in 2020). “We need to be the party that embraces the truth even when it’s painful.” Finally: “We need to renounce the conspiracy theorists and truth-deniers, the ones who know better and the ones who are just plain nuts.” Christie, the former governor of New Jersey, is actively exploring a run for president in 2024. However that turns out, what he said here is true and welcome.

•On 9/11 + 20, former president George W. Bush spoke at Shanksville, Pa., where Flight 93 crashed. Bush said important things eloquently. Of the national reaction to the day of disaster: “There was shock at the audacity of evil, and gratitude for the heroism and decency that opposed it.” Of Flight 93 specifically: “We learned that bravery is more common than we imagined, emerging with sudden splendor in the face of death.” Of America’s veterans: “The cause you pursued at the call of duty is the noblest America has to offer. You have shielded your fellow citizens from danger. . . . You have been the face of hope and mercy in dark places.” This passage, about “violent extremists” abroad and at home, provoked some grumbles: “In their disdain for pluralism, in their disregard for human life, in their determination to defile national symbols, they are children of the same foul spirit.” Was Bush comparing al-Qaeda to Capitol rioters? (His words apply equally of course to the worst George Floyd rioters.) Maybe Bush should have let terrorist mass murderers occupy the spotlight alone. And maybe radically alienated Americans, right and left, should check their premises, and their emotions.

•Spike Lee’s latest project, an HBO docuseries entitled “NYC Epicenters 9/11–2021½,” shows his beloved home city coping with terrorist attack and COVID. Its finale, slated to air on 9/11/21, propagated the conspiracy theory that the World Trade Towers were brought down by controlled explosives. Lee staged a cut-and-paste debate between 9/11 truthers and those who had carefully examined the evidence (let’s call them “facters”), but it was clear whom he favored. “The amount of heat that it takes to make steel melt, that temperature’s not reached,” Lee told the New York Times. The denunciations that followed Lee’s interview and previews of his series reached a temperature sufficient to make him cut the offending half hour. It is unlikely that Lee has grown wiser because of the fracas, but he will have to pick his next crackpot notion more carefully.

• Should the U.S. government fund gain-of-function research – a process that makes viruses more virulent and contagious in order to study them and develop vaccines? Back in 2014, experts at the U.S. National Institutes of Health (NIH) were sufficiently worried about accidental leaks to announce a pause on funding of such experiments with influenza, SARS, and MERS viruses, pending an assessment of the risks and benefits. That pause remained in place until December 2017, when new safety standards were announced. But during the pause, some taxpayer money went from the NIH to EcoHealth Alliance, a U.S.-based health organization that used the funds on bat-coronavirus research at the Wuhan Institute of Virology. In early September, The Intercept, based on previously unreported documents from the NIH, revealed that “the bat coronavirus grant provided EcoHealth Alliance with a total of $3.1 million, including $599,000 that the Wuhan Institute of Virology used in part to identify and alter bat coronaviruses likely to infect humans.” It is now clear that Anthony Fauci was not accurate during his Senate testimony in May when he declared, “The NIH has not ever and does not now fund gain-of-function research in the Wuhan Institute of Virology.” During that hearing, Fauci repeatedly insisted that the Wuhan research funded by the NIH did not qualify as gain-of-function under the NIH’s current definition. Critics accused Fauci of playing word games – and the new documents indicate that Fauci’s critics were right.

• It was never clear that the Centers for Disease Control enjoyed the legitimate power to order an eviction moratorium in response to COVID-19, but if it did, it shouldn’t have. The moratorium was effectively ended by the Supreme Court, but a few states have imposed moratoria of their own. Keeping renters in place during an epidemic might be good policy, but that is a decision for democratically elected lawmakers. In fact, it was a decision made by democratically elected lawmakers, independent of the CDC, with Congress authorizing billions of dollars in assistance for renters in arrears – only 11 percent of which was ever spent, for the usual reasons: Applicants found the process complicated and difficult, and the bureaucracies responsible for considering those applications often failed to do their work in a timely fashion if they did it at all. Democrats denounced greedy landlords in tones suggesting that the next step was to be dekulakization, but most landlords are small-time operators. Many are of modest means and highly dependent on rental income for their own expenses, including mortgage payments and insurance on their rental properties. Landlords currently are owed more than $15 billion in unpaid rent, with uncertain prospects for collecting it. Two things COVID-19 has taught us are that extraordinary times can require extraordinary action, and that no matter how genuine the emergency, emergency powers are always and everywhere liable to be abused.

• Is an epidemic of unvaccinated rubes’ guzzling horse de-wormer in the form of a drug called ivermectin accentuating the coronavirus pandemic? The answer, if you ask many – including the staff of Rolling Stone, which published an erroneous story asserting that hospitals in Oklahoma were being overrun with overdose cases – is a resounding yes. The truth is more complicated. Ivermectin is a commonly prescribed medication for humans as well as horses, and the National Institutes of Health published a report in February suggesting that it may serve as an effective treatment for COVID-19. But it’s not a substitute for being inoculated against the virus, much less a panacea, and more research should be done before people are encouraged to use it as a COVID treatment. The lazy and unthinking demagoguing of the issue says more about those engaging in it than about those interested in ivermectin.

• The National Religious Broadcasters (NRB), an association of Evangelical Christian communicators, fired its senior vice president for communications, Dan Darling, for encouraging people to get vaccinated. Darling, an author and pastor, was not speaking on behalf of the NRB when he appeared on Morning Joe to talk about his USA Today op-ed that said Christians should get vaccinated. The NRB said it has a policy of being neutral on the vaccines and that Darling refused to sign a statement saying he had behaved insubordinately. The response was heavier-handed than anything Darling said. He did not endorse a vaccine mandate and emphasized that “shaming, whether it’s from celebrities or media members or politicians, really is counterproductive.” He suggested that friends and family members try to persuade unvaccinated people individually. After his firing, Darling said, “I’m grieved that the issues that divide our country are also dividing Christians.” May we all come to appreciate the capabilities that the Creator gave His people to cure diseases and alleviate suffering.

• In a particularly vulgar bit of grandstanding, Salesforce CEO Marc Benioff has offered to help relocate employees of his California-based firm out of Texas in case they cannot bear living in a state where the law forbids aborting children once they have a detectable heartbeat. Benioff is one of those executives who like to be on cable-news shows – one whose progressivism is histrionic and performative, with more than a whiff of the marketing department about it. Salesforce is based in San Francisco, and the reality is that many of Benioff’s Bay Area colleagues are Texas-bound, in numbers that far exceed those making the journey from Texas to California, where the weather is very nice but not so nice you’d want to live outdoors if you do not have $1.3 million for the median home in San Francisco. For all the shrieking and angst, we expect about as many unhappy Democrats to leave their homes in Texas in response to the new abortion law as we saw Hollywood progressives moving to Canada after the 2016 presidential election.

• Once, American English contained an idiom advising people not to blow a petty concern out of proportion: “Don’t make a federal case out of it.” Somewhere in the bowels of the federal bureaucracy there is an unhappy individual who has been told once too often that the ice-cream machine at McDonald’s is broken, and he has decided to make a federal case out of it – at the Federal Trade Commission, which has launched an investigation into the matter. According to the Wall Street Journal, “the FTC reached out to McDonald’s franchisees this summer seeking information on what, exactly, is going on with the broken ice cream machine problem.” The machines at issue are made by Taylor Commercial Foodservice, but frustrated franchise-owners acquired additional diagnostic equipment from a third party, which now accuses McDonald’s and Taylor of conspiring to push it out of the market and copy its design. The only thing more American than McDonald’s is litigation, and so there is, of course, a lawsuit at the heart of this.

• As Hurricane Ida and its remnants swept across America, they left a trail of ruin, misery, and, death. They were also a reminder of the importance of preparing for extreme weather events. But such is the state of our climate debate that this reminder is at risk of being ignored. Climate campaigners focused on the storm as further justification for even more aggressive action against greenhouse-gas emissions, even though such measures, assuming they were advisable at all, could not possibly affect the climate anytime soon. A better lesson is that improving our resilience in the face of what Mother Nature may do is an investment worth making. Some $15 billion had been spent on improving New Orleans’s flood defenses after Hurricane Katrina, and those defenses held. The power grid did not do so well, and more resources should be allocated to it. To the northeast, Ida led to widespread chaos in New York City, but Gotham’s inability to cope was largely the result of weaknesses in an infrastructure that cannot properly deal with today’s climate, let alone tomorrow’s.

• “You have made the greatest mistake of your life,” said Winfield Scott to Robert E. Lee when the younger man told his former commander as secession flared that loyalty to his native state trumped loyalty to the United States. Lee went on to lose the war he unwisely volunteered to lead, and to win a role for himself as a symbol of southern white resistance. (The actual Lee was somewhat ambivalent about his mythic doppelgänger: His presidency of Washington College, which added his name to its own after his death, was studiedly apolitical.) Now his twelve-ton equestrian statue has been removed from its pedestal on Richmond’s Monument Avenue. The iconoclasm that attended the George Floyd riots was an outbreak of across-the-board anti-Americanism, as representations of founding fathers, abolitionists, and even one of Frederick Douglass were trashed. The Lee monument, erected in 1890, was a civic statement that those who had lost 25 years earlier should have won. That statement was false, and it is in that precise context that the move is justifiable.

• Rare is the professor who, when confronted with troubling orthodoxies on campus, openly asks critical questions. Peter Boghossian is one such. For ten years, Boghossian taught philosophy at Portland State University. In recent years, however, he had become alarmed by a new illiberalism around him, and finally it became too much. In early September, Boghossian published his letter of resignation in Bari Weiss’s Substack newsletter. It offers a disturbing account of a culture of contempt and intolerance. Boghossian writes that the university “transformed a bastion of free inquiry into a Social Justice factory whose only inputs were race, gender, and victimhood and whose only outputs were grievance and division.” When he attempted to expose bias and low standards in the peer-review process by publishing fake social-science papers full of jargony political advocacy, “swastikas in the bathroom with my name under them began appearing in two bathrooms near the philosophy department. . . . They also occasionally showed up on my office door, in one instance accompanied by bags of feces.” But “the university remained silent. When it acted, it was against me, not the perpetrators.” Boghossian ultimately felt conscience-bound to leave his post, believing that the university had abandoned its mission to seek truth. Who can blame him?

• In one of the first major antitrust cases under the Biden administration, a California judge ruled both in favor of and against Apple, Inc. At issue was Apple’s 30 percent fee for all purchases in its App Store and within apps on its operating system. Epic Games, the maker of popular video game Fortnite, argued that the fees amount to a monopoly rent. The court found that Apple does not have a monopoly in the relevant mobile gaming market, and so did not order a change to its fee structure. But in a partial victory for developers, the judge ruled that Apple could not prevent apps from directing users to independent payment processors – a central point of contention in the case. The ruling, which both sides may appeal, shows that major antitrust action against tech firms will be an uphill battle.

• On June 5, 1968, shortly after midnight, Sirhan Sirhan mortally wounded Robert F. Kennedy at the Ambassador Hotel in Los Angeles. Sirhan, a troubled young man and Palestinian nationalist, was convicted the following year and sentenced to death. Three years later, his sentence was commuted to life in prison after the California Supreme Court ruled the state’s death penalty unconstitutional. Since then, Sirhan has served a tumultuous 53 years in prison, but he has never taken full responsibility for his crime. As recently as 2016, he told the parole board that, “legally speaking, I’m not guilty of anything.” Now, on his 16th try, he is likely to be released unless the governor intervenes. Because he refuses to acknowledge his guilt, parole would go against the wishes of most of the Kennedy family, as well as common sense.

• Maria Kolesnikova must be one of the bravest people in the world. A musician by training, she is an opposition leader in Belarus who has been in jail for almost a year. In September 2020, she was kidnapped by masked men and taken to the border with Ukraine. The men were forcibly trying to deport her. In a stunning act, she jumped out of their car and ripped up her passport. She wanted to stay in her country and take a stand against its dictatorship. Later, in prison, she was told by authorities that she could win her release, if only she sought a pardon and appeared repentant on television. She refused. She has now been sentenced to eleven more years in prison. May Maria Kolesnikova outlive the dictatorship.

• The past year and a half has seen any number of disturbing corrosions of freedom across the West. But nowhere has this trend been more disturbing than in Australia, which has enacted a shockingly dystopian series of rolling lockdowns, complete with strictly enforced curfews, army patrols going door to door to make sure coronavirus guidance is being followed, and closed borders that don’t allow citizens in or out of the country. In New South Wales, residents have their groceries searched to ensure they don’t exceed the alcohol limit of six beers or one bottle of wine. In defense of these rules, the country was originally planned as a penal colony.

• Harvard University has a new head chaplain: Greg Epstein, an avowed atheist, the leader of Humanists for Biden, and the author of Good without God. His ministry as Harvard’s humanist chaplain consists of, in the words of a New York Times profile, “teaching students about the progressive movement that centers people’s relationships with one another instead of with God.” The message is a palatable one to many of Harvard’s students, half of whom in the incoming class do not identify with any religious tradition. The editors of the Harvard Crimson called him “the perfect choice to lead Harvard’s chaplains.” We cannot disagree. Progressivism has many of the characteristics of a religion – and at Harvard and elsewhere, it is well on its way to being the established church.

• Recently published research on the Australian musk duck examines the discovery of a 35-year-old recording of a duck named “Ripper” vocalizing a phrase very close to “You bloody fool.” While songbirds and parrots are known for their occasional ability to learn human words and phrases, a duck learning such a thing is news. Ripper was raised in captivity, which may explain his insult. Old audio also captured the duck (now deceased) imitating the slamming of a door. In the two years it took the researchers to complete their study, two more instances of musk ducks mimicking human sounds came to light. Musk ducks are named for the scent they give off when trying to find a mate. Perhaps a politer vocabulary would help too.

• Abimael Guzmán came close to destroying his native Peru. A visit to China in 1965 gave him the idea of having a Maoist cultural revolution at home. An academic in a provincial university, he recruited Shining Path, a group some thousands strong. In 1980 they began their uprising by hanging dogs on lampposts in Lima. Calling it “popular justice,” Shining Path went in for murder and massacre, kidnapping for ransom, and collecting its own taxes. Their victims were often the poor whom they were supposed to be helping. A truth commission was eventually able to assert that 69,280 people had lost their lives, more or less equally divided between Shining Path and the army that had laid aside the law in order to defeat terror. Detected in the safe house where he was hiding, Guzmán was brought to court and sentenced to life imprisonment. No longer defiantly waving Mao’s Little Red Book, he was put on show in a cage wearing an unusual striped jersey, as though the fanatic were also a clown. Died in prison, aged 86.

• “You’ve got a lot of spunk,” says Lou Grant to Mary Richards. She thanks him. He clarifies: “I hate spunk.” For 13 years Ed Asner played the curmudgeonly journalist, gruff and rumpled as the news director of a TV station in Minneapolis on The Mary Tyler Moore Show, wise and better dressed as the city editor of a Los Angeles newspaper in the spinoff series Lou Grant. The son of Orthodox Jewish immigrants in Kansas City, Kan., Asner studied journalism at the University of Chicago, and then drama. Two decades later he married the two disciplines in what became the signature role of his 60-year acting career. He served as president of the Screen Actors Guild in the 1980s and to the end supported a full spectrum of leftish political causes, including labor unionism. No male actor ever won more Emmy Awards; five of his seven were for Lou Grant. He won acclaim for his portrayal of the captain of a slave ship on the TV miniseries based on Alex Haley’s novel Roots. On Italian TV in 2002, he starred in a biopic of Pope John XXIII, who had Lou Grant’s build and demeanor. Dead at 91. R.I.P.

• In an internal memo leaked to the media, Today Show co-host Bryant Gumbel complained that weatherman Willard Scott, who earlier in his career had played Ronald McDonald and Bozo the Clown, held the program “hostage” to an “assortment of whims” and “bad taste.” Scott kissed Gumbel on the cheek the next time they appeared together on camera. A showman among journalists, Scott did his job. His gifts included a sharp instinct for disarming grouches, whether in his audience or among peers. Stubborn in his refusal to take himself too seriously, he began his career in radio entertainment and in the 1960s added children’s TV programming to his curriculum vitae. He passed the baton to Al Roker in 1996, after a run of 16 years on The Today Show, but continued to show up now and then for the next two decades, to extend hearty birthday wishes to centenarians. Spotting Scott working on the sidelines during her husband’s inauguration, Barbara Bush ran over and kissed him on the cheek. In September, at 87, he died at his farm in the Piedmont region of Virginia, not far from his native Alexandria. R.I.P.

• Robert Middlekauff was a historian of colonial America who spent most of his career at Berkeley. A native of Washington State, he went to the University of Washington. Later, he would write about George Washington, in book after book. Middlekauff earned his Ph.D. at Yale under the eminent Edmund S. Morgan. For the Oxford history of the United States (13 volumes), Middlekauff was asked to write the book on the Revolution. Its title is “The Glorious Cause.” That phrase, “glorious cause,” comes from George Washington, and in his prologue Middlekauff made a personal declaration: Patriotic Americans “believed that their cause was glorious – and so do I.” The historian has died at 91. R.I.P.

Pro-Vaccine, Anti-Mandate

In December, weeks before taking office, President Biden said of vaccination, “I don’t think it should be mandatory. I wouldn’t demand it be mandatory.” Now he has issued a mandate: Companies with more than 100 employees have to make their employees get vaccinated or conduct weekly COVID testing. He says the order will cover 80 million employees.

Biden was right the first time. It would be good if more Americans got the vaccine, which has proven both safe and effective, nearly eliminating the risk of hospitalization and death from COVID-19. But for the federal government to force it on the unwilling is overreach.

Defenders of the order point out that other vaccines are mandatory. But previous vaccine mandates have been imposed by states or individual school districts. Our political system counts among its basic premises that federal action is more dangerous.

Though we await the full legal rationale, the White House website says the order will come through the Department of Labor’s Occupational Safety and Health Administration, which will issue an Emergency Temporary Standard (ETS) to implement the requirement. In other words, the rule will be expedited to avoid the comment period that typically allows those who would be affected by a given order to weigh in. While OSHA has authority to set certain health and safety standards in the workplace, it would be stretching its authority to claim that it can be used as a means to facilitate broader public-health goals. Just this July, the Congressional Research Service noted that OSHA “has rarely used this authority in the past – not since the courts struck down its ETS on asbestos in 1983.”

The report goes on to explain that for an ETS to be issued requires that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that an “emergency standard is necessary to protect employees from such danger.” In the case of asbestos, a federal appeals court ultimately said OSHA couldn’t sufficiently support its claim that 80 workers would die from asbestos exposure if the rule were not implemented. Biden’s speech acknowledged that the risk of serious illness is extremely low for anybody who is vaccinated. Which is another way of saying that the order is not needed to protect employees from grave danger.

Earlier this summer, Biden extended an eviction moratorium after having declared it would be illegal to do so. The Supreme Court promptly blocked that action because it “strains credulity” to believe that Congress granted the executive branch “the sweeping authority that it asserts.” We hope that the Supreme Court will be just as incredulous when it comes to Biden’s latest overreach.

From Bad to Worse

America’s pullout from Afghanistan, negotiated by the Trump administration, executed by Biden’s, was in the end more inept, more thoughtless, and more shameful than almost anyone had expected.

Though a power that had been in the country for two decades, we behaved as if we did not know where the exits were or how to find them. Last flights took off from Kabul International Airport, a meager facility subject to easy surrounding and potential enemy fire, rather than from Bagram Air Force base, which we abandoned in the middle of the night without giving notice to our demoralized Afghan partners. Our military left behind enough matériel to equip a small army. The worst losses included night-vision gear that gave our troops a significant advantage combating guerrillas in the outback. That gear will now be used by the Taliban, the better to oppress their new domain, or sold to terrorists worldwide who want to step up their games.

The optics of the retreat, always to be considered in the wide-open media age, were as humiliating as the last helicopters leaving Saigon 36 years earlier. Desperate Afghans died falling from departing American aircraft or being crushed by their landing gear after takeoff. A terrorist bomb slew numbers waiting to board, and killed 13 servicemembers seeking to help them.

The thoughtlessness of the retreat consisted in believing that the post-victory Taliban might be on good behavior in order to gain badly needed international aid. They did not impede our rush to the exits – an ancient and universal principle of strategy. But they proceeded immediately to round up, torture, and summarily execute Afghans who had aided us during our stay.

As they were brutal to our friends, so we can expect them to be helpful to our enemies. Bagram lies within easy range of unstable post-Soviet nations and of China’s restless Muslim west. Expect air-traffic control there to be speaking Russian and Mandarin in the near future, along with Pashto.

Cast-off equipment and forfeited strongholds are great losses. Worse by far are the people abandoned, like castaways from a wreck. There are at least 100 Americans still left in Afghanistan, and perhaps many more – the State Department hedges on the exact number and may not even know, while aid organizations count up to a thousand while acknowledging that their lists may contain redundancies. Then there are the thousands of Afghan holders of green cards or special visas, as well as those who never thought to get them, never imagining a superpower would flee so irresponsibly.

President Biden may believe that we can monitor terrorists in their new country-size safe house from, as he vaguely puts it, “over the horizon.” He emphasizes the alleged success of our evacuation. To everyone else, what we have sustained looks like a major strategic defeat, and a self-inflicted one.

Texas Escapes Roe (for Now)

Texas pro-lifers have managed, for the time being, to stop most abortions in the Lone Star State.

Enacted in May, the Texas Heartbeat Act, also known as S.B. 8, prohibits a physician from performing an abortion (other than in a medical emergency) “if the physician detected a fetal heartbeat for the unborn child.” The fetal heartbeat is usually detectable at six weeks of gestation.

In an ingenious effort to prevent abortion providers from blocking S.B. 8 from taking effect, the law prohibits state officials from enforcing it in any way. It instead authorizes any private person to bring a civil action in state court against anyone who performs a post-heartbeat abortion or who knowingly aids or abets a post-heartbeat abortion. It entitles successful plaintiffs to at least $10,000 in damages for each violation as well as injunctive relief and attorney’s fees.

Because state officials are barred from enforcing S.B. 8, the usual path that abortion providers would take to prevent such a restriction from becoming effective – suing those officials to prevent them from enforcing the law – is a dead end. Instead, abortion providers would be able to challenge the constitutionality of S.B. 8 only if and when private individuals pursued civil actions against them.

Nonetheless, abortion providers sued various state officials and, frustrated in the lower courts, requested emergency relief at the Supreme Court, where they were denied. The five justices in the majority – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – correctly held that the Court has the power to “enjoin individuals tasked with enforcing laws, not the laws themselves,” and the abortion providers hadn’t shown that any of the defendants should be enjoined from doing anything.

Meanwhile, no one has brought a civil suit against an abortion provider in Texas because, as far as we know, no one is performing the banned abortions in Texas. For now, the deterrent effect of the penalties in the law are working.

All of this has, of course, provoked howls from a Left used to almost all abortion restrictions’ getting nullified by judges wielding the precedents of Roe and Casey.

The Texas law, it is alleged, constitutes vigilantism. The mechanism of relying on private individuals to bring civil suits to enforce a law isn’t new, though. It is a feature of anti-discrimination, consumer-protection, and environmental statutes, even if S.B. 8 is unusual in dispensing with government enforcement entirely.

There’s no doubt that S.B. 8 is crafted in a convoluted way, and there’s the downside risk of the Left’s using a similar tactic against gun dealers or oil and gas producers in other states. But if it weren’t for the illegitimate impositions of Roe and Casey, states such as Texas could straightforwardly restrict abortion. The Court should do its duty in the upcoming Dobbs case and once again allow state legislatures to enact strong legislative protections for unborn children.