Texas keeps on resisting Roe

President Biden had no censorious words concerning the Taliban as the evacuation catastrophe in Kabul unfolded, but he sure let ’er rip Thursday when the Supreme Court let stand, for now, a new Texas law blocking early abortion procedures. Out came the dictionary of excoriative synonyms: ‘extreme’, ‘blatantly’, ‘outrageously’. Ripping up any reminders of freedom in Afghanistan is a smaller game, in Bidenesque terms, than ripping out, or extracting from the womb in some other manner, the smallest particle of human life. Such is the mode of modern politics, we might note, sadly.

The Texas law, which went into effect at midnight August 31, is the latest attempt by a supposedly sovereign state to mitigate the effects of Roe v. Wade and subsequent jurisprudence circumscribing any state’s right to accord unborn life the benefit of the doubt.

A number of states are presently lining up to ask the Supreme Court to rethink the whole matter. The court this fall will weigh challenges to a new Mississippi law banning abortion after 15 weeks (Dobbs v. Jackson Women’s Health Organization). The Texas law, signed by Gov. Greg Abbott (toward whom Biden consistently exhibits a noticeable animus) is a horse of a slightly deeper color. It bans abortion in cases, when a heartbeat is detectable, usually at around six weeks.

And wait: that’s not all. Some supple legal strategy went into the stew the Texas Legislature seasoned and produced last summer.

The legislature in effect deputized ordinary citizens to sue providers of heartbeat abortions. The New York Times speculates gratuitously, if unsurprisingly, that an Uber driver could be sued for complicity in an illegal abortion. (The mother herself would be exempt from suit.) The beauty of the thing is that state officials are expressly barred from enforcing the law. Lawsuits couldn’t touch them inasmuch as they themselves would function as mere bystanders, howsoever appreciative in their private capacity of efforts to save a life. How about that, lawsuit fans?

The law will certainly in due course undergo the high court’s scrutiny, and theoretically, if improbably, the justices could buy into the terms of Justice Sonia Sotomayor’s angry dissent from the 5-4 order (Mr Chief Justice Roberts joining the minority) to leave the law alone at present. Said Sotomayor: ‘The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional (italics mine) law engineered to prevent women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.’

Ouch. Hot to the touch, that. While we wait for it to cool, a few related points beg notice. One, of course, is that the ‘constitutional rights’ noted by Justice Sotomayor find nothing like the general affirmation and untouchability she seems to take for granted. Roe v. Wade — more an edict than a carefully reasoned piece of jurisprudence — has been under strenuous challenge since it was handed down in 1973. You might suppose something was amiss with a decision that continues to infuriate millions; that, in fact, has settled almost nothing, else the court that decided it wouldn’t still be talking about it. And talking. And talking.

‘Flagrantly unconstitutional’? That might be termed the ripest question of our time. Sotomayor’s attempt to preempt the coming legal discussion with a pre-prepared answer is both futile and unbecoming.

And, oh, History, thy ironies! — they spin; they box the compass. The new law is Texan in origin. From the material of Texas law came the original federal clampdown on the right of states to protect unborn life as a matter of right. The Wade in Roe v. Wade was the district attorney of Dallas, defending the state’s prohibition of abortion in most circumstances against the claims of a woman — Roe in judicial usage — who subsequently renounced the whole idea that abortion was fine and dandy and Nobody’s Business But the Mother’s. By which time it was a little late, of course, but her point stands. The high court will consider it this fall when the Mississippi case comes on for argument.

A second irony shows its face. According to the Guttmacher Institute, whose advocacy of abortion never distorts its honest statistical reporting, 70 percent of Texas abortions in 2019 were performed on black women. It is odd in this time of supposed reckoning for social and political offenses against blacks to find establishment types urging the removal of particular obstacles to black population growth. But then moral and intellectual rot is the legacy of Roe. That the White House finds the odor downright savory is in some sense the bleakest social indicator of a bleak time.