It would be hard to imagine a more deeply personal, enormously consequential, morally fraught public policy issue than abortion. Those on either side of this debate who reduce the topic to pithy slogans or strident policies only reveal their failure to struggle respectfully with the weight of the question. This newspaper has long been committed to honest, curious, open-minded debate on matters that shape our society. In that vein, we offer this critique of Texas’ new abortion law.
What’s clear to us is that the recently enacted Texas law isn’t going to improve this country’s debate over abortion. It’s more likely to mire us in conflict and legal chaos.
The case law is clear. In Roe v. Wade (1973), the U.S. Supreme Court established that women have a constitutional right to abortion. And in Planned Parenthood v. Casey (1992), the court ruled that a state regulation cannot impose an “undue burden” on women’s ability to get an abortion before fetal viability (about 24 weeks). By banning abortions past six weeks, before many women know they’re pregnant, Texas is doing just that. As more than one legal scholar has noted, the law is plainly unconstitutional based on the Roe decision.
But that may be the point. Some anti-abortion activists are looking to take the fight back to the Supreme Court in hopes the new makeup of the court will revise or overturn Roe.
There are limitations to that strategy. Court decisions are binary. They do not allow for the nuance and flexibility an issue like this requires. Texas’ law ensures the courts now will remain the premier battleground.
Independent reporting for Pine Bluff & Jefferson County since 1879.
The law opens a new arena for such duels, empowering civil litigants to act as vigilantes. It should be seen as an end-around that outsources protection of the unborn, along with its attendant risks, to private citizens. This doesn’t color Texas as a place where laws protect the vulnerable; it colors us as a place where lawmakers can’t seem to do so.
The new law also fails the test former president George W. Bush staked out in calling for striving to “change hearts and minds with compassion and decency” in advance of changing laws.
We’d put it a little differently and say we’re better off when we’re working to change hearts and the circumstances that lead to abortion. Not doing so only affirms skeptics’ suspicions that life mostly matters to anti-abortion activists in the womb.
We’re not surprised that the Supreme Court hasn’t taken up a challenge to this law after it got hung up on a legal technicality. But there’s little doubt that will change soon and that the court might revisit Roe on this or another abortion case.
When that happens, our hope is that America will finally have the honest and substantive debate about this issue that it has failed to have for 50 years.
Confusion and conflict exist here, in part, because we’re dealing with profoundly philosophical and moral questions, not only medical determinations. Are the unborn persons who deserve protection under our laws? When does such personhood begin? Should uncertainty about those matters give us pause about such protections? How should we resolve conflicting rights? Are we acknowledging and honoring the rights of women?
What the Legislature has not done here is to take those concerns seriously and cultivate an environment in which fewer women turn to abortion in desperation, fewer women feel belittled because of their medical history, and fewer abortion rights proponents are willing to dismiss unborn life. Instead, the Legislature has simply inflamed a culture war issue that has already driven deep divisions in America for half a century.