September 4, 2021

The Texas Anti-Abortion Law: Simply Mean-Spirited Politics

by Hal Gershowitz

Comments Below

And misogynistic as well.

Legislating that abortion is flat-out illegal in Texas would, well, be unconstitutional. So, instead, the Texas male-dominated legislative posse has legislated the illegality of terminating a pregnancy if the embryonic weight is, essentially, a measurable fraction of an ounce, actually, about half an ounce. And, yes, at six weeks, the half-once embryo is not yet a fetus, and while cardiac cells have begun to form, there is no heart at six weeks either.

Let there be no mistake, however, regarding the preciousness of that half-ounce life-in-formation. Nor should there be any mistake about the propriety of a woman having reasonable agency over her own body. This column will not address the propriety of terminating a pregnancy, but rather the politics of abortion in Texas.

Let’s put the best possible light on the Supreme Court’s refusal to hear the Texas case and assume the five conservative Republican justices who declined to hear arguments regarding Texas simply considered another case from Mississippi that the Court is scheduled to hear this fall to be a better case on which to rule. After all, the Republican Supreme Court justices did write that their abstentions were, in no way, indicative of their views on the merits of the Texas anti-abortion case.

A betting person might rationalize that the Supreme Court will strike down the Mississippi law that prohibits abortion after 15 weeks because fetal viability is the standard the Supreme Court has embraced. A fetus is not viable at 15 weeks (well under half the term of a typical pregnancy). On the other hand, the Court could go the other way and uphold the Mississippi 15-week standard. While the Mississippi law may be just as onerous as the Texas law, fifteen weeks is still two-and-a-half times longer than six weeks and, therefore, perhaps, for many non-thinkers, not quite as absurd.

My search of world records found that one extremely premature infant born at 8.6 ounces after 23 weeks of gestation was among the smallest babies ever to survive. Another infant was born alive at only twenty-one weeks and four days, weighing 410 grams or just under one pound.

No newborn comes close to surviving at six weeks or fifteen weeks, so survivability as a standard in Texas and Mississippi is out the window. Legislators using political power to impose their own standard of viability at six weeks or fifteen weeks are shameful. Viability, life, death, disastrous life-long infirmity is of no interest to them at all.

The Texas law is mean-spirited because it designates no state office or official to enforce the law, essentially meaning there is no one against whom to litigate. The Texas law explicitly prohibits any office or officer of the State from enforcing the law. Instead, it provides a reward or bounty ($10,000 plus expenses) for anyone (as long as they’re not representing the State of Texas) who succeeds in suing any pregnant woman or anyone who, in any way, assists a pregnant woman to have or to seek to have an abortion.

You see, the Supreme Court has, since Roe versus Wade (1979), essentially held that it is unconstitutional for state or local governments to prohibit abortions during the first trimester of pregnancy. The so-called Casey case in 1992, however, did establish that certain requisites, such as a reasonable delay of 24 hours or so could be required before any procedure was performed. So, while it is deemed unconstitutional for any state or local government to outright outlaw abortion, the high court never contemplated run-of-the-mill, non-government snitches, or bounty hunters as plaintiffs.

This is as mean-spirited a piece of legislation as one could imagine. It is what one might imagine the old and feared East German Stassi (secret police) to have conjured up, given their penchant for getting citizens to spy on other citizens. Come to think of it, Kim Jong-un, the Supreme Leader of North Korea, rewards citizen spies.

To make the Texas law as onerous and mean-spirited as possible, the Lone Star Republicans ensured that neither rape nor incest would constitute grounds for terminating a pregnancy. In fact, under the Texas law, a rapist who might be the first to know he may have impregnated a woman could, himself, be the snitch who schemes to collect the bounty.

So far, Democratic and Republican Supreme Court Justices have slapped down laws enacted in a dozen states that have banned abortions. What this Court will ultimately do with six Republicans, three of whom were appointed by former President Trump, is anybody’s guess.

There may be a political backlash coming in the 2022 mid-term elections for these Texas Republicans who have decided they know what is best for the women of the Lone Star State. However, it is not hard to divine the political calculus the brave men of Texas have made. According to the Pew Research Center, the State is pretty evenly divided between Republicans and Democrats, with 40% of Texans identifying (or leaning) Democratic and 39% identifying (or leaning) Republican. The overall grouping by age is roughly the same between Democrats and Republicans as well.

However, because reproductive rights might energize younger voters, the Democrats have a slight edge, with 34% of this group (ages 25 to 40) against 28% for Republicans. Also, women who were so decisive in the 2020 presidential election could exact retribution against Republicans in the 2022 midterm elections, even in Texas, where Democrats have an edge among female voters, 53% to 49%.

Women will turn out in huge numbers for the mid-term elections next year, and the Republicans may pay a stiff price for what they have done, maybe even in Texas.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the essay’s subject or are ad hominem references to other commenters are not acceptable and will be deleted.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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4 responses to “The Texas Anti-Abortion Law: Simply Mean-Spirited Politics”

  1. Susan Duman says:

    You explained so beautifully what Texas has done and what it means.
    My usual gratitude.

  2. Michael Gong says:

    The very I idea of anyone, friend or foe, family member or total stranger, informing on another’s decision, which should be an entirely personal and private matter, is so repugnant as to be beyond the imagination. It is the stuff of police states and ” big brother” is watching. And this from lawmakers who fancy themselves guardians of personal freedom and the rights of the individual. The day that a male is raped and suffers an unwanted pregnancy is when this issue will be resolved, once and for all. I am appalled at the Texas legislature.

  3. Leslie Usow says:

    Hal, such a well thought out explanation of what has happened in Texas. How about a national boycott of any company, product , or venue from Texas.

  4. Sherry schor says:

    I worry that those people who want to rid women of freedom of choice will not stop with this issue. All our personal lives will become fodder for radical persons in the guise of moral authority and personal rights. I was involved with planned parenthood for many years. I know the decision to have an abortion is not an easy one for anyone. One of my daughters is a nurse practitioner who worked at planned parenthood and I know she dealt with the women who had to decide and it was never a flippant decision. So many emotions are entailed to bring a woman to this point. The pro lifers want “to save a life” but they don’t want to give aid to the mother and child after the birth. affects their pocketbook and they don’t want to pay to help theses women and children

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