A new law passed by the Texas legislature has effectively abolished abortion in the “lone star” state. This marks the first time the alleged “right” to abortion has been successfully rolled back – and the first time in the fifty years ever since Roe v Wade that the Supreme Court in the United States has refused to defend abortion. “Unless the Supreme Court intervenes, for all intents and purposes Roe v Wade is dead in Texas” is how National Public Radio’s legal reporter Nina Totenberg describes it. It is a “fetal heartbeat bill” that bans abortion from six weeks, earlier than the vast majority of women know they are pregnant.
The Texas law has been described as “fiendishly clever.” It does not ask state officials to prosecute abortion providers – which could have meant the Supreme Court – even with its conservative majority provided by Donald Trump – might have been forced to strike it down. But instead, it offers a $10,000 bounty for the general public to take abortion providers to court.
Shocked at the Supreme Court’s refusal to strike this innovative law, Texan abortion providers have shut up shop. This marks a major cultural moment. For the first time in half a century, conservatives, many of them Christian, have seen a victory in the cause that has energised the US right since Reagan and fused an evangelical political base into the Republican party.
Is it, in Churchillian terms, “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning?” That was said after El Alamein. What will be said of this moment in the culture war over abortion?
What happens next.
In deciding NOT to take on the Texas case, the Supreme Court has left its powder dry to deal with another key abortion case which it has already agreed to review. Dobbs v. Jackson Women’s Health Organization is a challenge to the constitutionality of a Mississippi law that (with limited exceptions) bars abortions after the 15th week of pregnancy the authoritative SCOTUS blog reports, “could upend the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey, in which the court ruled that the Constitution protects the right to have an abortion before a fetus becomes viable.”
Roe established a right to abortion up to the stage of viability – roughly 24 weeks – but slowly declining with research. If the anti-abortion side wins Dobbs, that barrier will be smashed and states will be able to ban abortion.
The Texas decision was a 5-4 result, with Chief Justice John Roberts moving left to join the three liberal judges, leaving the solid five conservative judges to rule in favour. This might indicate how the Dobbs verdict will go. The case will be heard in the fall – our spring.
At least seven other states plan to copy the Texas law. Arkansas, Florida, South Carolina, South Dakota, Kentucky, Louisiana, Oklahoma, and Ohio – all Trump states in 2020 are considering a Texas-style law.
What happens after that.
The Texas law is a radical “private right of action” law that empowers citizens rather than officials and police to enforce the law. Many conservatives are concerned about that sort of law. Some Democrats want to copy it, going after gun ownership.
“You could imagine a state banning the sale of guns and authorizing vigilantes to sue gun sellers and buyers,” Julia Kaye, the lead attorney on the Texas case for the ACLU, told Politico. “You could imagine a state banning certain statements in online forums and authorizing anyone who sees the post to sue the person who posted it. The sky is really the limit in terms of attacks on constitutional rights.”California and New York Democrats plan to use the template for gun laws.
The Supreme Court may not be a big fan of the Texas law either. The Court gave an “unsigned decision”. This means they did not rule on the merits of the Texas law but simply decided not to intervene.
It is possible that the Court will rule on Dobbs, winding back Roe v Wade at least partially, and revisit the Texas law later, having established a way forward for banning abortion.
What might happen after that?
Anti-abortion politicians, in the words of Charles Cooke of the National Review, are like “the dog that caught the car.” After decades of shoving responsibility for abortion law-making off to the Supreme Court, they now become responsible., whether through a Texas-style law or Dobbs. This will play well in Red (conservative) and Blue (progressive) states and districts. It will be more of a problem in “Purple” or swing state. Abortion in the first trimester is still popular in the US, with 61 per cent supporting it.
The challenge for anti-abortion activists following their success in Texas might even be greater. “Now is the time to build a culture of life and a civilization of love,” is how the National Review magazine introduces a piece by Kathryn Jean Lopez. That culture would welcome life turning away from babies being a problem or difficulty. “Shouldn’t we be embracing [new life], as we welcome every new spring with grateful expectation for the beauty to come — in amazement? There’s work to be done, but how can we help but to be enchanted by creation? Whatever the circumstances of pregnancy, we are a part of creation, creating with God, even if that was not the intention. Something beautiful comes from what might have been a slip or a mistaken sense of having to give away what is so precious to a man who didn’t deserve it. But that young woman deserves better than to be forced into an abortion. And that’s what all too often happens. Advocates of abortion talk about the poor women who won’t have access to abortion when it is restricted. Do poor women not deserve to be mothers? This seems to be the implication of the argument. Can’t we agree that it would be best to do better to make sure that these moms can choose life for their babies?”
The Texas law opens up a new opportunity for those opposed to abortion to show how society is improved with pro-life laws. But it will be hard work. Making sure that there is a village to raise each child, give the mother opportunity, and provide not mere bleak economic security but flourishing, community, and love.
Achieving a legal victory on the back of a skillful political win is one thing. making the law work so well that neighbouring states and the US as a whole might begin to shift because they see signs of a better, gentler and more compassionate society is another. But that change of heart is what is required to make even more secular places like Australia take note.
One wonders whether those Texan Christians have big enough hearts. It will test all the faith they have got. It will take a move of the Holy Spirit.