What About Texas’ Abortion “Ban”?   5 comments

Texas passed a law concerning abortion and it took effect after the US Supreme Court voted 5-4 allowing it to go forward.

Oh, my god, the world is ending! Every woman in the United States will be forced to carry her father’s kid to term and the country will be flooded with unwanted babies.

Says the World

Hyperbole Much?

Texas's Abortion Law Blunder - WSJ

Supporters of legal abortion argued the court’s acceptance of the Texas law represented a de facto end to rights guaranteed in the 1973 Roe v. Wade decision, an attack on personal privacy and an introduction of vigilante justice into the court system

In truth, the Supreme Court rejected the challenge to the law because those who brought the lawsuit didn’t have “standing”–meaning they didn’t have a sufficient interest in the case to file a challenge to the law. The Supreme Court did not, therefore, rule on the merits of the law itself — only one whether the challengers could bring a suit before them. They couldn’t, but what does the law say?

What the Law Says

Texas enacted a six-week limit on abortions. This isn’t a complete outlier. Fourteen states have similar restrictions. In fact, Roe v. Wade limits abortions to the 1st trimester — 12 weeks. In 1973, fetal heartbeat was detectable at about 12 weeks, so the limit made scientific sense. About 25-50% of pregnancies end spontaneously before 12 weeks, so the justices at the time could reason that doctors were just doing what nature does. Today, fetal heartbeat is detectable at about 6-8 weeks, so the Texas legislature can argue there is a detectable organism that is distinct from the mother. Other states limit abortions at eight weeks or less or until fetal heartbeat is detectable.

What is unique in the Texas law is that instead of the State of Texas enforcing the law, anyone can enforce the law and attempts to violate the law, thus sidestepping the federal courts…for now.

The law allows judgments up to $10,000 per person per abortion and it applies to anyone who abets an abortion – the doctor, the nurse, the office receptionist, maybe the person who drives the woman to the abortion clinic. That can add up quickly. It provides ordinary people with both the incentive and the means to harass people who regularly end the lives of unborn children.

The law doesn’t make exceptions for rape or incest, but abortion patients themselves cannot be sued.

The new Texas law potentially affects thousands of women seeking abortions. Precise estimates are difficult. In 2020, Texas facilities performed about 54,000 abortions on residents. More than 45,000 of those occurred at eight weeks of pregnancy or less. Those abortions would still be legal under the new law, if they occurred before cardiac activity was detected. So, it’s unlikely to save the majority of imperiled children– just a minority of them whose mothers ignore their symptoms too long.

What Different Then?

What is unique in the Texas law is that instead of the State of Texas enforcing the law, anyone can enforce the law and attempts to violate the law, thus sidestepping the federal courts…for now.

The law allows judgments up to $10,000 per person per abortion and it applies to anyone who abets an abortion – the doctor, the nurse, the office receptionist, maybe the person who drives the woman to the abortion clinic. That can add up quickly. It provides ordinary people with both the incentive and the means to harass people who regularly end the lives of unborn children.

Texas is one of 14 states with laws either banning abortion entirely or prohibiting it after eight weeks or less of pregnancy. The rest have all been put on hold by courts. Most recently, a court halted a new Arkansas law that would have banned all abortions unless necessary to save the life of the mother in a medical emergency. Other states with blocked laws banning abortions early in pregnancy are Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee and Utah.

What Happens Next?

The case is still alive in the 5th U.S. Circuit Court of Appeals. The Supreme Court’s standing decision doesn’t reinstate any stricken abortion laws in other states. It’s possible the Supreme Court has given other states a roadmap for circumscribing Roe vs. Wade and other Republican lawmakers have taken note.

Arkansas Republican state Sen. Jason Rapert tweeted he planned to file legislation mirroring Texas’ law so the Arkansas Legislature can consider it when it reconvenes this fall. The session agenda has already been limited to congressional redistricting and COVID-19 legislation, so it Rapert may have to wait for next year’s session.

Mississippi Republican state Sen. Chris McDaniel believes most conservative Southern states will consider this an opportunity to move on the later-term abortion issue. Mississippi’s legislature is scheduled to start meeting in January. Meanwhile, the Supreme Court will hear arguments this fall on a 2018 Mississippi law that would ban most abortions after 15 weeks of pregnancy — a case that is a direct challenge to Roe v. Wade.

Vigilante Justice?

Some states have already turned to citizens to enforce new laws.

A Missouri law recently took effect allowing citizens to sue local law enforcement agencies whose officers knowingly enforce any federal gun laws. Backed by Republicans concerned over Democratic President Joe Biden’s rhetoric on gun control policy, the law imposes fines of up to $50,000 per occurrence on police and sheriff’s departments can face fines of up to $50,000 per occurrence.

In Kansas, frustration over coronavirus restrictions prompted a law that allows residents to file lawsuits challenging mask mandates and limits on public gatherings imposed by counties. Last month, the Kansas Supreme Court allowed enforcement of the law to proceed while it considers an appeal of a lower court ruling that declared the law unconstitutional.

Utah also took a similar strategy on pornography in 2020, passing a law allowing citizens to sue websites that fail to display a warning about the effects of “obscene materials” on minors. Though adult-entertainment groups warned it was a violation of free speech, many sites complied with the law to avoid the expense of a possible onslaught of legal challenges.

And let’s be honest here – citizens filing their own lawsuits is the backbone of environmental and disability-rights law, Environmental groups, for example, file suits against businesses accused of violating federal pollution permits and then larger actors in the field join them to give the suits more weight in court.

For example, California’s Proposition 65 allows people who may have been exposed to potentially carcinogenic materials to both file their own lawsuits and collect a kind of “bounty” if they win. Those laws are different, though, in that people generally must show they have been directly affected by a violation of the law, a feature missing from the new Texas measure.

What’s Likely to Happen?

Challenges will work their way through the system. It appears this Supreme Court likes to send challenges back to the lower courts until a very significant similar case comes up and then the SCOTUS announces a ruling that encompasses those other cases. At least three of the “conservative” justices on the Court are strong believers in stare decisis – let the decision stand–so they are not likely to overturn Roe v Wade, even though they may personally disagree with the now 50-year-old ruling. However, they might strike a compromise that brings the current practice of abortion back into line with Roe v Wade. Most people today don’t realize that Roe only blocked state abortion restrictions in the first trimester. States have struggled with this ever since — how to deny later-term abortions. Certainly abortion of a child who would be viable if it were born naturally is a violation of the spirit of Roe as well as commonsense and yet it happens all over the country in states that haven’t defined what viability means. Maybe the Supreme Court could settle the question.

The concept of ordinary people being enabled to harass abortion providers (but not abortion patients) is an interesting one. Being accused and ostracized for killing babies might make some providers uncomfortable enough to decide to quit their profession.

My only real issue with the Texas law is that it doesn’t allow exceptions for incest. I’m less concerned with rape because you know you’re at risk for pregnancy after rape and you should be self-testing yourself every week and going for an abortion when you come up positive. Incest victims don’t have those options and are often unable to avail themselves of the services. It does have exceptions for medical necessity.

I also believe strongly that most abortions are sought by women who were careless with contraception. Modern contraception is highly effective and highly accessible. You can get a diaphragm at any family-medicine office for under $250 and a tube of spermicide is available at most grocery stores for under $15. Insurance pays most of the cost of the diaphragm — office visit to device. My insurance will even reimburse the spermicide if I file the right paperwork. A properly fitted diaphragm with liberal use of spermicide has an +95% effectiveness.

My insurance will pay for all of the cost of contraceptive pills (though they only have a 91% effectiveness for preventing pregnancy). Combined with condom usage, both methods are +99% effective. The ACA got exactly two things right — allowing kids to stay on their parents’ insurance until they are 26 and covering conception medications and devices. Abortion should be much rarer than it currently is. I suppose women who can’t be bothered to take a pill every day or use a diaphragm every time they have sex can’t be expected to recognize the symptoms of pregnancy. I learned I was pregnant a week and a half weeks after my daughter’s conception, so I was very aware of those early symptoms. I recognized I’d been experiencing them for a week already. Four weeks would have been plenty of time to get an abortion, even though I would have had to travel to Anchorage (about 400 miles) at that time. When I became pregnant with my son, we weren’t planning it. I felt the early symptoms, thought maybe it was a flu bug, missed my period, decided it wasn’t the flu, and I self-tested at four weeks. If I’d wanted an abortion, I would have two weeks to get an abortion.

Women need to take responsibility for their own bodies and most of us miss our first period about two weeks after conception. Some women have less regular periods, but there are other subtle symptoms that should trigger a self-test. And the Texas law would eliminate only 11,000 of 54,000 abortions. Most women know they’re pregnant before six weeks, before there is a fetal heartbeat.

Quit Panicking

Yeah, the Texas law is pretty bold, based on science (heartbeat) and makes a nod toward Roe’s standard of the 1st trimester. The Supreme Court didn’t rule it was constitutional. They simply said the challengers didn’t have standing. It’s possible they will include this case in the Mississippi case when it comes before the Court. Roe has not been struck down. It’s been challenged, asked to make itself clear. That’s not a bad thing. Roe is 50 years old. Science has changed in that time. Maybe it’s time to have a conversation about how a standard ought to adjust to the era. Which doesn’t mean the Supreme Court is infallible. A long ago SCOTUS ruled on Dred Scot v Sandford. That 1857 ruling, like Roe, stood at the intersection of law and politics. And 20 years later, following the most horrific war Americans ever fought, it was overturned. Should Roe be completely overturned? I don’t think so. Should it be modified based on new information? Yes, probably.

Posted September 8, 2021 by aurorawatcherak in Uncategorized

5 responses to “What About Texas’ Abortion “Ban”?

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  1. And still over half the world’s population remains second class citizens. Promise you if men had to be pregnant you could get a shot on every corner to terminate it.


    • I’ve been pregnant twice (well, three times, but there was a miscarriage). And trust me — it didn’t make me a second-class citizen in my marriage or my career. The joy of raising those two young people was well worth any sacrifices I or my husband made in terms of leisure activities. We mostly saw ourselves as partners in it. But he does admit he wouldn’t have been the good sport I was during the pregnancies. “I would have been a whiny child” is how he explains it.

      Liked by 1 person

      • Exactly. More to the point – in a time of unprecedented human rights noise what a woman chooses to do with her body is nobody else’s damn business and shouldn’t even be a topic of conversation or legislation.


      • And, I disagree. There are at least three people involved in the abortion decision and the other two lives ought to matter. Someone should give a care about that child’s life. And women today have little excuse for getting pregnant. Contraception failure is very rare and when it occurs it’s almost always because of user error or failure to use it at all. Most abortions are procedures of convenience. My convenience shouldn’t be an excuse for killing other humans. People need to take some responsibility for their own behaviors.

        Liked by 1 person

  2. And given the right to choose those behaviors outside of any artificial moralistic constraints. Six kids, six baby daddies – noboby was paying attention and certainly didn’t give a fuck (intentional pun) about the ultimate “out come.”


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