Texas wants y’all to know it’s pro-life.
Not in the sense of saving folks from COVID by rushing to be the most vaccinated state in America or in the sense that they believe in social distancing or masking in the face of the Delta variant.
And not in the sense of ensuring adequate health care to its children, taking aim at poverty or abolishing capital punishment, or anything like that.
But in the sense that Texas loves fetuses (or is it feti?) more than the rest of you and is prepared to prove it.
So as to demonstrate their natal priorities, legislators there have passed a law essentially banning abortion after about six weeks of gestation. This, they say, is when nascent heart activity can be detected in the gestating fetus. Of course, as with most things involving science, they’re wrong: at that point, there is no fetus, just an embryo, and the activity being detected is not a heartbeat at all.
But the real problem with the bill is its method of enforcement.
Rather than using the state to enforce the law, Texas has empowered private citizens to sue anyone involved in providing an abortion or facilitating one and collect $10,000 if they successfully do so. By farming out enforcement this way through the civil courts, lawmakers seek to end abortion by intimidation.
Here’s the thinking:
First, the threat of potentially ruinous lawsuits will deter doctors and clinics from providing abortion services.
Then, if abortions cease (technically by choice of the providers), there would be no one for citizens to sue under the law.
Then, if no one is sued under the law, no one has standing to challenge the law in court since no one would have been injured directly by the civil penalty provisions.
Thus, because the lawsuit provisions had injured no one and abortions stopped “voluntarily,” there would be no Constitutional issues in play since Constitutional rights can only be abridged by state actors, not private citizens.
As such, abortion would be essentially halted in Texas, and Roe v. Wade effectively overturned by default.
Whether or not the gambit works will depend on the courts, of course.
On the one hand, and despite the Supreme Court’s refusal to issue a temporary injunction pending a full legal challenge, there is a strong likelihood the law will, ultimately, be struck down. Though the state is relying on citizens to serve as bounty hunters rather than going after abortion providers themselves, there are several federal laws that, properly applied, would result in this clever workaround being viewed as unlawful.
On the other hand, with the courts moving further to the right and increasingly relinquishing the pretense to respecting precedent, there is certainly no guarantee the law would be voided.
But regardless of the legal outcome, what is most telling about the law is how its civil lawsuit provisions undermine the fundamental moral case anti-abortion activists make for banning the procedure.
Indeed, the law proves the anti-choice movement doesn’t really believe fetal life is fully human and legally or morally equal to already-born life.
Why do I say that? Well, think about it.
The law allows citizens to sue abortion providers or facilitators but not the women who obtain an abortion. And while this may appear to be the one redeeming factor of the law, it’s a tell in gambling parlance.
Politically, they know that allowing citizens to sue women who get abortions or imprison them under an even harsher criminalization scheme would prove wildly unpopular. And so they seek to cast women as “secondary victims” of abortion, presumably manipulated into terminating their pregnancies by devious doctors, family planning organizations, radical feminists, or, perhaps, witches.
Aside from how this narrative strips women of agency, thereby demonstrating what the anti-abortion movement thinks of them — that they’re too feeble-minded to understand the consequences of their actions and be held accountable for them — there is a profoundly ironic twist to this quirk in the law.
Namely, if you wouldn’t hold the woman you think is “killing her baby” legally responsible — criminally or civilly as with this legislation — you are tacitly admitting you don’t believe fetal life the moral equivalent of, say, a 2-year-old or 2-day-old for that matter.
After all, if a mother were to kill her newborn or toddler, virtually everyone would believe she should be held accountable in some way. Indeed, most would support some term of incarceration in that scenario — probably a lengthy one.
Even if you hired someone else to kill your newborn or 2-year-old because you lacked the will or ability to carry out the act yourself, virtually everyone would agree you would deserve criminal sanction.
In that scenario, it wouldn’t be enough to hold the hitman responsible. No one would think it logical to argue the woman had been too weak-willed to resist the entreaties of some contract infant-killer, and thus, should be exempt from accountability.
But if you would criminally punish a mother who murders her newborn or has someone else do so while not even allowing a lawsuit against the mother who “kills” her unborn child (or has someone else do it), you are distinguishing between them. You swear there is no difference, but then you would treat their respective killers differently?
There is only one way to interpret this — you don’t believe the lives are morally equal. You know full well they are different.
And this matters.
If fetal life is not equal to born life, then by definition, it is not equal to the life of the woman carrying it. As such, the liberty interests of that woman outweigh the interests of that fetal life and must receive the legal protection deserved by full personhood.
Yes, fetal life may have some value. It doesn’t have to be simply a clump of cells, as some might say.
But it is also not, in any moral sense, the same as it will be once it has been delivered.
And that’s not because I say so.
It’s because, by the anti-abortion movement’s own actions, they do.
This post was previously published on An Injustice!.
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