First, let's look at why the Supreme Court opted to let it stay in place for the time being:
In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.
The dissenters, Sotomayor, Kagan and Breyer, based their objection on the legal system's understanding of abortion as a constitutional right, per the Roe v Wade decision of 1973.
What ought to be remembered, but is only hazily so, is that there has been a consensus over the decades that the reasoning by which that decision was reached was itself a joke from a Constitutional standpoint:
Roe is judicially wrought social legislation pretending to the status of constitutional law. It is more adventurous than Miranda and Griswold, other watchwords of judicial activism from its era. It is as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks.
It is, in short, a travesty that a constitutionalist Supreme Court should excise from its body of work with all due haste.
Roe has been commonly misunderstood since it was handed down in 1973, in part because its supporters have been so determined to obscure its radicalism. It is commonly thought that Roe only prohibits restrictions on abortion in the first trimester, when it effectively forbids them at any time, imposing a pro-abortion regime as sweeping as anywhere in the advanced world.
The confusion arises from the scheme set out in the majority opinion, written by the late Justice Harry Blackmun.
In the first trimester, the court declared, the right to abortion was absolute. In the second, states could regulate it to protect the mother’s health. In the third, states could restrict abortion in theory, but had to allow exceptions to protect the life or health of the mother, defined capaciously in the accompanying case of Doe v. Bolton to include “emotional, psychological, familial” considerations, as well as “the woman’s age.”
Roe struck down 50 state laws and has made it all but impossible to regulate abortion, except in the narrowest circumstances. More to the point, the argument that its particular set of policy preferences is mandated by the Constitution is flatly preposterous.
Over the years, the decision’s laughable constitutional inadequacy has been widely recognized. Shortly after it came down, Harvard Law School professor John Hart Ely, a supporter of legalized abortion, wrote that “Roe is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
“Justice Blackmun’s opinion provides essentially no reasoning in support of its holding,” a former Blackmun clerk, Edward Lazarus, has written. “And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.”
That’s because none is possible. The court in Roe purported to find the constitutional right to abortion in the 14th Amendment, which says that no state can “deprive any person of life, liberty, or property, without due process of law.”
This passage has no obvious or even subtle connection to legalized abortion (in fact, abortion laws were being tightened in the 19th century when the amendment passed). No matter. According to Blackmun, abortion is so central to liberty that no restriction on it can stand constitutional scrutiny.
He is at pains to deny that unborn children are “persons in the whole sense.” As evidence, he points to clauses in the Constitution about persons that don’t have “prenatal application,” e.g., the requirement that persons must be 35 or older to run for president.
This is too stupid for words. Just because clauses like this refer to adults doesn’t mean that minors, or unborn children, don’t have rights.
The best case that can be made for Roe is that it is a mistaken decision on the books for nearly 50 years now, so it has to be honored as a precedent. But the court is not, and shouldn’t be, in the practice of standing by fundamentally flawed decisions. Brown v. Board of Education overturned Plessy v. Ferguson, which upheld segregated education, almost 60 years later. Just last week, the court overturned a labor decision from 1977.
But the Texas heartbeat law is too clever by half in the way it tries to get around the heavy-hand-of-government-preventing-women-from-exercising-a-right argument. In a you-ought-to-read-the-whole-thing piece by Matt Lewis at the Daily Beast entitled "I'm A Conservative Who Hates Abortion; The Texas Law Is A Disaster," Lewis steers clear of side issues and puts his concern for defending fetal Americans' right to life front and center:
I’m not here to quibble with the Supreme Court’s 5-4 decision not to enjoin a Texas law that bans abortions after a fetal heartbeat is detected—that was a complex legal and procedural decision over which reasonable people can disagree. Nor am I here to talk about the political backlash that may result from this, or whether Texas handed Biden “a lifeline” (although that’s entirely possible).
But I am here to suggest that the law hinders my ability to persuade others to value the dignity of life and to create a culture of life. If you care about changing minds and changing the culture, that’s a huge problem.
He says the law greatly hobbles the ability of pro-lifers to convincingly make their case by projecting the image of being vigilantes:
In defense of this law, conservatives are attempting to do something patently unfair to women and anyone who “aids or abets” them.
It also shifts the identity of someone who opposes abortion from being a devout modern-day William Wilberforce to being a glorified Dog the Bounty Hunter.
Roger Severino of the Ethics and Public Policy Center has the entirely opposite view. In a National Review piece, he calls it a stroke of genius:
The abortion industry has stifled pro-life laws by strategically bringing “pre-enforcement challenges” before liberal judges who dutifully prevent the laws from ever going into effect. This tactic upends the normal course of litigation by asking courts to consider what parties might or might not do and to weigh harms that might or might not be experienced, instead of judging concrete facts based on actual events. But in case after case, results-oriented judges have jettisoned legal norms on this point using what Justice Scalia famously dubbed the abortion “ad hocnullification machine.”
Successful pre-enforcement challenges don’t result in laws being literally erased from the statute books. Rather, they work through a legal fiction established in the case of Ex Parte Young that allows federal courts to bar state officials from enforcing the challenged laws. But what if a state allowed private citizens to go to court to enforce violations instead? That’s exactly what Texas did. It passed a law prohibiting abortions of children with beating hearts but left enforcement exclusively to private parties who can sue in court for $10,000 in damages per illegal abortion. Lost in the media panic over this law is the fact that defendants can still prevail if they prove a damage award would pose a “substantial obstacle” to getting an abortion on women served by a clinic defendant.
The concept of private-party law enforcement is more familiar than you might think. Consider a typical small-claims court where disputes range from breach of contract, to slip-and-fall cases, to accidental damage to a neighbor’s property. Or consider someone who sues a landlord under a state fair-housing law for sexual harassment. In each of these cases, enforcement is handled by private parties through the courts, and state prosecutors need not have anything to do with securing plaintiffs any compensation.
You might be thinking that the Texas law differs because it allows private people to sue even when their own rights aren’t directly harmed or at stake. Fair point. However, third parties already sue for the benefit of (indeed on behalf of) the government with some frequency. The False Claims Act, for example, allows Joe and Jane Citizen to sue contractors who have defrauded the federal government. They need not be employed by the government or the contractor, or have anything to do with the contract, yet can receive up to 30 percent of the monies recovered if they prove fraud without any federal-government participation whatsoever.
Texas’s genius was applying these existing legal concepts and frameworks to neutralize the abortion industry’s most potent weapon, the pre-enforcement challenge. Abortion clinics are now in an impossible bind because on the one hand, there is no one to sue because no state official is allowed to enforce the law, while on the other hand, there are too many people to sue because they can’t identify who among the millions of Texas pro-lifers will step forward to enforce the law.
Texas’s giving up its extraordinary prosecutorial power while empowering private citizens is like a stunning queen sacrifice in chess that enables the weaker pawn pieces to spring a trap on an unsuspecting king. As a result of this brilliancy, for the first time since 1973, abortion clinics in Texas are now halting abortions en masse because they are unwilling to stand before a judge to justify every time they stop a child’s beating heart.
What a marvelous check.
A cogent case, but ultimately falls short in light of the considerations raised by the likes of Lewis.
Now, regarding the two main responses we're hearing from the Left, they are old and tired, but merit a word of comment.
The whole my-body-my-choice / keep-governmental-force-out-of-my-uterus line of rage objection, we can begin, as has been the case for fifty years, by pointing out that, even if we are to call a fetus a pomegranate, or a 3/16-inch Allen wrench, the fact is that, dear choice advocate, you were one once, as were all of us. From there we can proceed to a position rooted in Christian doctrine. A new soul has entered the space-time realm at the moment of conception, and it only happens in the body of a female.
And that position leads us to the second response, namely, that pro-lifers seem to care a great deal about embryos and fetuses, but not so much about unfortunate people who are already born, such as the addicted and/or homeless, or immigrants between a rock and a hard place, or domestic violence victims. That one's full of holes, too. It's such a sweeping generalization that it can't be substantiated with numerical data. "Caring" takes all kinds of forms. A truly Christian approach is based on caring for everyone. The apostolic letters and indeed the teaching of our Lord Himself make this clear. If any given person or organization is not following through on this, it's not due to an inadequacy in the teachings. All the above-mentioned dilemmas of already-born people are open to ideas for solutions that may depend, to one degree or another, on public policy. There are all kinds of variables involved not only in each type of situation, but in the case of each individual's life. There are no such variables involved in the question of whether an innocent person ought to be allowed to live.
The pro-choice mindset just strikes me, and always has, as being rooted in a bitterness that ultimately comes down to a resentment at the basic architecture of the universe. The rush to accelerate the obliteration of specifically female and male identifying characteristics starts from the abortion question and gathers momentum until it reaches the point of "birthing persons" becoming official government lingo, and "gender options" beyond being make or female available to those applying for drivers' licenses.
The idea that there is no higher order than the human capacity to self-invent (or at least indulge the delusion of such a capacity) notched the win with this Texas law, well-meaning pro-lifers' contrary assessments notwithstanding.
Thus will our culture get even more grotesque.
