On Copperhead Road
Texas's heartbeat abortion bill is as "wise as serpents."
It’s a good day for the unborn in Texas, as the state’s heartbeat abortion law passed in May goes into effect. The measure makes it illegal for doctors to abort a child for whom a heartbeat can detected—generally, after the sixth week of pregnancy.
Currently, the Supreme Court’s precedent allows doctors to abort unborn children up until they are viable outside the mother’s womb, when the child is already significantly more developed than at six weeks. Now, Texas joins Ohio, Georgia, Louisiana, Missouri, Alabama, Kentucky, and South Carolina in putting such a law on the books, its second attempt since a similar 2016 law was overturned by the Supreme Court.
The Wall Street Journal reports that “the matter only arrived at the Supreme Court on Monday, centered on the preliminary question of what rules should apply in Texas while abortion providers continue to challenge the ban in lower courts.” The Journal notes a federal appeals court halted trial court proceedings in the case for now, and declined to block the ban from taking effect.
Significantly, however, the structure of Texas’s ban prevents the usual harangue of activists from suing government officials who would be responsible for enforcing such a decision, as they have done in every state that has passed such a bill.
The Journal explains:
Abortion-rights advocates typically challenge new restrictions before they go into effect by suing the government officials who would be in charge of enforcing the law. But Texas lawmakers devised a measure that shifts enforcement from the state to private parties. Under the terms of the six-week ban, private parties can file civil lawsuits against any person who allegedly performs or aids a banned abortion, or who intends to do so. Under the law, a successful suit entitles the plaintiff to collect at least $10,000 in damages per abortion challenged.
State officials emphasized this feature of the law in papers filed Tuesday afternoon with the Supreme Court, arguing it was among many reasons abortion providers weren’t entitled to an emergency order blocking the law.
“This court cannot expunge the law itself. Rather, it can enjoin only enforcement of the law. But the governmental defendants explicitly don’t enforce the law,” Texas Republican Attorney General Ken Paxton and other state officials told the high court.
As The American Conservative senior editor Rod Dreher wrote last June, after the Supreme Court struck down Louisiana’s heartbeat law, the SCOTUS jurisprudence on abortion is mangled at best.
“Can anyone understand SCOTUS abortion jurisprudence? Can it ever be applied logically? I think it can, if you understand this principle: Pro-lifers must lose,” Dreher wrote.
Yet the Texas legislature, at least for now, has found a way to wrest a meaningful victory from the judicial mire—and power back from a legislating judiciary. It’s more than a victory for life; it’s a model for conservatives in state legislatures to follow, who have any real desire to protect the American way of life beyond what they can post on their campaign websites. If the Texas law succeeds in stymying abortion activists, it shows that conservatives actually can win battles, and when we aren’t winning, maybe it is due to a lack of cunning, not just a system rigged against defenders of innocent life at every turn.
The Gospel of Matthew has words to the wise, as true in politics as in any other aspect of life in exile: “Behold, I am sending you out as sheep in the midst of wolves, so be wise as serpents and innocent as doves.” We can continue using the same timid approaches, and hope against hope we aren’t devoured, or we can learn to outsmart the wolves. Texas did just that.