SCOTUS refuses to block the Texas Heartbeat Law at present
The so-called Texas Heartbeat Law took effect yesterday.
Here’s the text of the law; it’s long and I’ve only read about a third of it. It includes, among other things:
Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat…
Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat…
Section 171.204 does not apply if a physician believes a medical emergency exists that prevents compliance with this subchapter.
The law seems quite unusual for abortion-limiting laws in that the liability is civil and not criminal, which means that the state would not be bringing any actions under it but any random citizen could sue a provider under it. It is my understanding that there would be no action allowed against the woman herself, only against providers, but I’m not 100% sure about that. At any rate, it seems that the goal and the upshot would be that providers would get out of the business of doing abortions on anyone over 6 weeks pregnant, because otherwise they would risk a lawsuit and a loss of income.
A lot of the pro-abortion people are saying this effectively bans abortion in Texas. It doesn’t do that, but it does restrict it so much that the vast majority of abortions would indeed be liable to a civil lawsuit. A woman might have to go to another state if she wanted to have an abortion after that 6-week mark, and this would impact the most on poorer women.
SCOTUS has decided the case on procedural grounds, and it’s only a temporary decision not to block it:
It was a non-abortion ruling because by 5-4, with Roberts voting with the liberal block, the court found the case not ripe for judicial intervention. But it’s related to abortion, so according to the left, it’s the end of the world, and we’re already in that movie with the women in red robes and head coverings…
The government is not enforcing the law, private citizens are. But none of those private citizens have not yet filed a suit under the law, so there’s nothing for SCOTUS to decide yet. The Court left open that there might be other procedural ways to judicially challenge the law, and made clear it was not ruling on the merits.
So that’s it. That’s the entire thing. Someone actually has to bring suit in order for there to be a possible SCOTUS appeal. From the opinion:
…[F]ederal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.
I assume we haven’t heard the last of the challenges to this law.
As usual,the anti’s have taken it a bridge too far. Since they are convinced that any abortion is murder, they aren’t going to see it in any sort of tactical or politically feasible light, but as a stark moral choice.
The pro’s, of course, have their own take no prisoners faction. I have both in the family: a church 2 or 3 times a week cousin and a rabid feminist sister, so I get if from both sides when I propose the appearance of human brain waves (somewhere around 3 months) as the dividing line for legality.
Texas will lose, and eventually someone will write a bill to my proposal. Three months polls in a majority.
Third paragraph, “It doesn’t no that,” should be “do.”
Kate:
Thanks, fixed.
At base, pro’choice’ advocates have to insist that the new life growing inside the mother has no right to life. That a fetus is not a person. That only when some indeterminate point after birth is reached does a person take form. That souls don’t exist. That’s trying to prove a negative. Generally, it’s about convenience and escaping consequence.
Whereas, prolife advocates insist that a life in the process of becoming a person has to have a right to life or there is no right to life for anyone. Because if the most innocent of lives can be denied the right to life, then the right to life can be denied to anyone.
When “its for the greater good” is the defining metric, then there are no inalienable rights. Only revocable privileges. There lies tyranny.
Buddhaha,
Your issue is likely because your dividing line has no innate superiority over a detectable heartbeat. It’s an intractable issue, since both sides are operating from a completely different set of moral values. To make progress with either side, you’re going to have to change those moral values before proposing middle ground. And good luck with that.
As usual,the anti’s have taken it a bridge too far. Since they are convinced that any abortion is murder, they aren’t going to see it in any sort of tactical or politically feasible light, but as a stark moral choice.
That’s what it is.
When this case gets back to SCOTUS on the merits, expect riots in DC.
It looks like maybe the Right outlawyered the Left on this. If only Trump had better lawyers and had been prepared better.
buddhata,
I acknowledge being an absolutist in principle here, since I think it’s clear that a human fetus, as a member of the human species from conception. I’m also pragmatic enough that I’ll take what restrictions on abortion are possible now, rather than wait for public opinion to shift entirely to my viewpoint to do anything. You may be right that Texas’ law will ultimately be struck down, but it is not a slam-dunk that that will happen. Apart from what you think of the policy, Roe v. Wade was execrable as a legal decision as well. Stare decisis should not save it.
Let us compare the civil rights court decisions (Brown v. Board of Education) and laws to the abortion decision in 1973. Equal rights are now widely accepted as being right and moral. Despite Democrat propaganda, actual white supremacists are hard to find, and good riddance. But Roe V. Wade has never been widely accepted as moral or acceptable. We remain as divided over it as we were following the decision, with a large majority of citizens opposed to abortion beyond three months or so.
buddhata may be right in saying that we’ll end up in most places with a three-month limit on elective abortions, but that’s not because opponents will agree that makes logical sense. It will be because it’s what we can get.
I’ve heard that this law will expose all manner of individuals only peripherally related to an illegal abortion to lawsuits: the Uber driver, the receptionist at the clinic, family members who assisted the pregnant woman in someway (perhaps with financial assistance). Given that none of these actors would have knowledge regarding the presence or lack of a detectable fetal heartbeat or of any possible complicating medical factors, I don’t see how this is possible. It would seem to only expose the medical personnel with direct knowledge of the pregnant woman’s precise medical situation. In fact, absent access to medical files, how would a third party ever have evidence that the law has been violated?
buddaha – I think you would find that most pro-lifers would happily take a three month ban over what we have now. It might even be the best compromise. The problem is that a three month ban
would probably go down under the Roe/Casey undue burden test.
Row perverts everything.
buddhata may be right in saying that we’ll end up in most places with a three-month limit on elective abortions, but that’s not because opponents will agree that makes logical sense. It will be because it’s what we can get.
That’s how democracy works. You don’t generally get everything you want.
The US would be a better place if people accepted that, rather than continuing to press for absolutist positions that they know offend others.
That’s why Roe v Wade is so awful. Not because it is poor law, but because it is a matter than should be decided by legislatures, not courts. Nine people should not be deciding such things for the rest.
“I propose the appearance of human brain waves (somewhere around 3 months) as the dividing line for legality.” buddhaha
In principle, what is the difference between “the appearance of human brain waves” and the detection of a fetal heartbeat?
Obviously none. It simply places an earlier cut off date for abortions.
No, the issue here is twofold for the ‘prochoice’ advocates. Firstly, that Texas has decided to restrict abortions, period. Is there any doubt that the ‘pros’ would object to the appearance of brain waves as a cut off date?
Any restrictions on abortions are anathema to most prochoice advocates with a not inconsiderable percentage favoring infanticide for “botched” abortions. That group’s most famous personage being one Barack Obama.
Secondly, that the new law targets the providers of abortions who violate the law. It focuses on the logistics of abortion, rather than a tactical focus with its appeals to the mother to be.
The Progressive Church, Synagogue, Temple, Corporation, Clinic, and Democrat party are offering apologies in the form of straw clowns dressed as strawmen. A human life is viable until her Choice or Her Choice.
There is no mystery in conception following sex, which is why they conducted witch hunts with #MeToo, warlock trials with allegations of systemic sexism (e.g. rape… rape-rape culture), and protests with slut walks. A woman and man have four choices: abstention, prevention, adoption, and compassion. And still six weeks, which is hopefully, a progressive remnant of a nominally “secular” religion that enshrines the wicked solution, among other bad choices. Baby steps.
a not inconsiderable percentage favoring infanticide for “botched” abortions.
A single-minded, single-purpose choice, a double-edged scalpel, with few survivors, and collateral damage. A wicked solution to a purportedly hard problem. A religion that denies women and men’s dignity and agency, and reduces human life to a negotiable asset.
the anti’s have taken it a bridge too far
Not “anti” but “pro” as in Pro-Life, Liberty, and the pursuit of Happiness, without diversity [dogma] (i.e. color judgment). Elective abortion, whether of a baby (the technical term of art “fetus” to socially distance), an infant, teenager, adult, or senior in self-defense, and even then there is a priority to mitigate an immediate and imminent risk, not to employ lethal force for social progress, social justice, property and other light and casual causes.
Chester Draws,
Yes because representatives in State legislatures are subject to removal, whereas SCOTUS’ members are not. That wouldn’t be a problem if SCOTUS always issued rulings consistent with the Constitution. But of course they not infrequently ignore the Constitution. Prima facie evidence of unfitness. As they’re not there to make law but strictly decide on the Constitutionality of laws and how the Constitution may or may not apply to issues.
It’s a self evident truth that everyone has a right to a minimal amount of privacy. Which is irrelevant to abortion, as it requires the ending of a baby’s life by ‘deciding’ that the unborn haven’t that most fundamental of rights, the right to life itself.
That hinged on the ‘perception’ that prior to birth, the fetus is simply and only part of the mother. In effect reducing a baby to the state of an amoeba, in that it necessarily proposes that the process of gestation in human beings emulates mitotic division. Then magically transforming that lump of protopasm into a separate individual by passage through the birth canal and in the drawing in of its first breathe.
Some punted to appease the mob. Others lacked the critical faculties necessary to discern the issue with clarity.
I think the Texas law is not optimally framed. The case is made that it’s innovative in keeping the state out of it, but I’m not convinced. Ultimately I don’t think it will stand, but its future iterations might. I happen to think the ‘6-week’ criteria is a bit arbitrary and extreme, and less defensible.
I do think that the past couple of years has shown a groundswell of support from the American demographic that they view late term abortions as something of an abomination, that selling harvested baby parts is disgusting and morally indefensible, and that abortion should be constrained more than it is at present. So this law takes a large step in that direction.
I don’t think that many would argue against the assertion that the Overton window on abortion has significantly shifted back toward center, even though its far-left position has been held as a stalwart for decades, as an important Progressive victory. All this because of newly-crafted laws in Texas and other states that supply definitions. This demonstrates feasibility of concept, not so?
Aggie:
It turns out to be very difficult to write a law to limit abortions, and I agree that this one is not legally sound. I haven’t studied it in any depth and haven’t figured out the details, but I definitely find the ability of anyone and everyone to sue and collect damages to be a flaw.
“It’s an intractable issue, since both sides are operating from a completely different set of moral values”
Agree. It’s intractable.
A reasonable first step might be to remove government funding. The pro abort side is well heeled. Pay the doctors rather than legislators that force the unwilling to pay.
To my great surprise, when I was pregnant with our second at 35 and was given the choice of amniocentesis, my husband said, ” How would it change anything? Would we do anything different if we knew the baby had something wrong?”
I was quite sure he’d be pragmatically pro-abortion.
So we didn’t do it then, and have a frankly gorgeous, quirky, and amazing almost 20-year-old math major daughter at UT to show for it, and we also didn’t do it two years later when caught utterly by surprise, and have a handsome, funny, and intelligent 17-year-old to show for that.
How would we feel if, instead, we’d had a child born with Downs or another developmental or physical syndrome that would have made his life and ours so much harder? I don’t know.
All I can say for sure is, I have faced the prospect of abortion three times in my life (only with our first intended child did I not have it at the back of my mind), and I thank a God I don’t in any real way comprehend that I didn’t take that quick and deadly path. But the path I have taken has been easy compared to that of some. I’m cautiously anti-abortion because of my conviction that a child conceived ought to be a child born unless nature intervenes and because of my three beautiful children, born despite misgivings and maternal age and all that – but am I going to cast the first stone? That’s a seriously tough question for me.
Will be interesting to see just how quickly someone does bring a suit and who lines up behind this stuffed dummy. You’d think that smarter Progressives might have some ability to sniff what’s in the air and be able to guess how this might just end up. Not really a time for anyone to be doing loop-de-loops on the Contentiousness Radar, IMHO.
For the record I am staunchly anti-abortion, despite all the pragmatic arguments in favor of it — greatest being that it disproportionately culls varieties of people I don’t wish to see more of. But everyone deserves a chance… until say Age 21. After that, three strikes and some kind of medieval outlawry would work just fine.
From Kate, above: “Equal rights are now widely accepted as being right and moral.”
So, how does a fetus protect its “equal rights,” assuming one of those is “right to life”? Do we as humans have a responsibility to protect those unable to protect themselves? We recently saw a number of humans attempting just that in Afganistan, for adults and children; where should the line be drawn?
I don’t have an answer, just the question, because I don’t know.
Texas took an interesting tack, that of placing the state out of the line of fire, or more likely, earnestly attempting to do so. As many above have pointed out, there is no middle ground which is acceptable, or will ever be, to both sides and as such, Texas was wise in seeking to avoid becoming further embroiled in the battle.
Neo stated, above; that this law is flawed; I do not disagree. I suspect any law on this topic will be “flawed” if “agreement by both sides” is required to avoid that label.
I also suspect one of the flaws, which cannot and probably will not ever be resolved, is that of not driving responsibility, and the attendant consequences, down to the individual(s) directly involved. That’s “Advanced Social Engineering” which is begging for failure; if conception never occurs the question becomes moot but since the only method of conception prevention with a guaranteed zero percent failure rate is total abstinence and humans routinely demonstrate inability to achieve that (nor would that necessarily be a desirable standard to require (see: Shakers, self inflicted elimination through required celibacy)) this is an issue we’re going to have with us as long as there is even slight freedom and humans to practice it, and no truce will ever be offered or accepted.
We can expect those Handmaid’s Tale costumes to come out of mothballs, where they’ve been since the Kavanaugh hearings.
I’m reading various legal opinion pieces on this Texas law, and many think, as does Neo, that it’s flawed. It seems to grant an immediate class-action sort of right for anybody to sue. Wouldn’t it have been better to require some sort of “standing” in the person filing the lawsuit? Not sure how that would work, either.
Consensus is that the Mississippi law, a ban after 15 weeks, has a better chance, and it will be argued this SC term.
The Roe decision was a massive misstep by the Supreme Court. Best to return the issue to the states.
Prior to Roe, women were avoiding pregnancy through the use of birth control meds. Why is that not now the rational option ?
If there was a first trimester limit, then the pro-life movement could change their emphasis toward preventing pregnancy in teens and offering options such as adoption. There will always be some abortions, but changing attitudes among the majority would be great. It might also get guys to take fatherhood more seriously, which would affect joining gangs and selling drugs.
As starving lawyers find ways to use the new law to litigate every miscarriage in Texas the Texas GOP will have to decide if letting their single issue pro-lifers control the party is a good idea.
If the Texas Democrats stop talking about taking the guns and run on repealing this law they could capture the huge independent vote in Texas, changing things in very unpredictable ways. Decriminalizing gun possession by law abiding people is overwhelmingly popular in Texas. That is how so-called Constitutional Carry is perceived here.
Texas is not a Red State as much as it is an Independent Leave Me Alone state. What might happen if former Independents become a dominant voice in the Democrat Party? Who will lead when the Boomers age out? It won’t be Beto. An entirely new Texas Democrat Party may be the result of this law.
What message will the Texas GOP coalesce around when faced with destruction in 2022? It is hard to see any single issue pro-lifer change or let go, and they control every office from Precinct Committee Person up in the GOP. What we may see are GOP incumbents moving away from the pro-lifers to save themselves.
Straight ticket voting is not allowed in Texas. This could result in GOP for national offices and Democrats for State Legislature.
The future just got much much more opaque.
I don’t see how they can enjoin the law at all. Texas is aiming at provider, not the patient. Interesting law.
NYC in the decade before Roe: young men and women living together outside of marriage (translation = sleeping together outside of marriage). What made this possible ? Birth control meds. Abortion in that culture was the result of an “accidental” pregnancy. With Roe, such “accidents” could be nullified – resulting in sex without traditional forethought and responsibility. Roe advocates could always point to rape and incest as causes of “unwanted pregnancies”. Even Bubba advised the “safe, legal, and rare” approach – but obviously to no avail.
To its passionate advocates abortion signifies freedom and independence. Fetus be damned. Heartbeat be damned. Make the world safe for AOC and Megan Rapinoe !
LeClerc:
I’m not at all sure that’s correct. I was around prior to Roe, and my recollection is that there was a ton of abortion of the illegal back alley variety. I know a great many people who had abortions back then, before it was legal. Very harrowing tales. Some of them were very young indeed (mid-teens). Some have regretted it ever since. Probably none of them appear in statistics, because it was done secretly.
In addition, there were a lot of shotgun weddings. A lot. And lastly, there were many children given up for adoption.
I can’t compare the number of unwanted pregnancies then and now. It may indeed be significantly higher now. But it was quite high then, and people just dealt with it in different ways.
I agree, though, that in an age of widely available effective birth control, unwanted pregnancy should be quite rare. But it’s not.
Great comments, all. “Deckhand_Dreams” raises serious practical questions about the imputed culpability of defendants charged with “aiding and abetting” an abortionist. How can the Uber driver know? How can the plaintiff know that a given procedure violated the standard? At least in a class action you have to have bought the defective product or suffered injury from the toxic spill or otherwise established that you have suffered injury enough to get into court. Here? Can I start a suit by claiming that I feel terrible at the non-zero rate of abortions at the XYZ clinic over the past N months?
I think the law was too clever by half; may be mostly an effort to serve the Progressives a heaping helping of their own nasty Lawfare practice; and is going to paralyze the state and perhaps the nation. The Supremes’ punt won’t last long.
First the pill and then, ‘the right’ to kill an innocent unborn life, freed young men from parental responsibilty.
If she gets pregnant, it’s solely her decision and thus her responsibility. No say in the decision, no responsibility.
That is the unintended consequence.
The law seems reasonable.
Don’t forget, bringing a civil suit is costly, so I think the risk of legions of massively funded Karens plaguing doctors en masse is far fetched. And there’s also the medical emergency clause.
Cappy:
They don’t need legions. They just need one or a couple of test cases. People wouldn’t have to self-fund, either – I imagine there will be donations to fund such cases.
And the law itself may have a chilling effect even without any cases, if most doctors don’t want to assume the risk.