On September 1st, a number of bills became law, bills that passed during the Texas Legislature regular bi-annual session, ending in May. One of these was what is termed the Texas Heartbeat Law.
Since it passed, there has been a lawsuit asking for it to be, essentially, struck down—and stopped temporarily until such strikedown. That injunction moved through the courts, where recently the US Supreme Court ruled against the injunctions. More explanation below. But first let’s deal with the explosive panic from people who don’t like the idea of a state where killing babies is in any way limited.
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| Gov. Greg Abbott signs the Texas Heartbeat Bill image from CBSDFW.com, found here |
Here are the claims:
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Women are going to be fined $10,000!
·
Uber drivers are going to be fined $10,000!
·
Roe v. Wade has been overturned!
· Women will die because of this law.
None of these things is true. You can read the law yourself,
here.
Arguing
with Smoke
I made the mistake of engaging online, to an extended family
member—who lives very far from Texas, never visits here, and who after many years of
infertility is now raising a darling pair of twins, is in her 40s, married, and
never going to have more children. So why she’s worried about this law in Texas
is a puzzlement. But she posted something (no longer available for me to view)
that claimed that the law put a $10,000 bounty on women. So I said the law
doesn’t do that; it allows people to open a civil suit against providers who
kill babies after a heartbeat is found. Then I provided the link to the
actual text of the bill.
And I got attacked, by additional extended family whom I don’t
engage with on social media, and who also never visit Texas, nor are of an age
or inclination to ever have another pregnancy.
One said, “what ever trumpettes,” which has no actual
meaning I can discern, lacking punctuation or point. Another said,
I will not be visiting Texas. This law is so restrictive. It
even goes so far as to be able to charge a taxi or Uber driver that drives a
woman to a clinic. Since there is a HIPAA law, no one else should even know why
a woman is going to a clinic. It is none of their business. This law will not
stop abortion, it will only cause more women dying. The fact that some of these
laws that go so far as to criminalize a woman that miscarries is beyond crazy.
The next thing you know, they will be charging women for having a period!
I kid you not. Of course no Uber driver is going to be held
accountable, because they do not know what a woman is doing at a clinic,
whether she’s pregnant or how far along, or just stopping by for birth control; nor do they have anything to do with
the procedure. The law addresses abortion providers, not casual workers at
other jobs going about their daily tasks. While it does outlaw abortion after detectable
heartbeat, it does not provide any criminal penalty; it only allows the civil lawsuit.
And what kind of idiot actually believes—and spouts off about it without any research—that this or any law criminalizes women for having a miscarriage, for
which she has no control and probably mourns?
Normally I wouldn’t respond at all. But I added one more comment.
I pointed out the irony of the sudden resolve never to visit a state they never
visit, and assured them Texas wouldn’t feel the harm from their continued
absence. I pointed out the error about the Uber driver. I added that there is
already an exemption for women whose life is at stake, untouched by this law,
which has no provision about criminality for the woman anyway. And I called her out for not
reading the bill—since I’d already provided the link.
The person who had, I think, intended to call me a “trumpette” [Is that meant as a
sexist slur against a female who may have voted for Trump?] added, “another
armchair anti- women’s rights throw up on the web comment,” which I guess is
their ungrammatical code for, “How dare you present facts to us!” That was the end of my
engagement, although others continued to add comments in the thread for a day
or so.
Other than posting links to this blog, about which I avoid
saying anything too controversial, because Facebook tends to censor, I don’t engage
politically online. I read a lot, and offer “likes” and sometimes comments in
groups where there is much agreement. But I don’t enjoy contentious arguments.
And I especially don’t enjoy debate with fact-free spewers of lies and vitriol.
It’s like having a conversation with smoke. It has no substance, it’s annoying, and it follows you just to annoy you longer.
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| campfire smoke image found here |
I do have something to say about speaking truthfully. This
law, and others, are intended to reduce the number of babies killed in the
womb. Those of us who are against baby killing think it doesn’t go far enough.
But if we can only do an incremental movement thus far, at least it’s
something. We’re honest about what the law actually does.
The other side can’t say, “We want to see babies killed in
the womb as much as possible—any time a woman feels like doing it.” That would
not attract people to their side. So they lie—about the Uber driver, the woman dying, the
woman having a bounty put on her, the woman being in danger of breaking the law
by allowing her body to spontaneously miscarry, various metaphors about A
Handmaid’s Tale, etc. If there could be a debate with people who favor killing babies in the womb (and some who favor killing babies even after birth), then it ought to be on truthful terms. Let people know what side they're choosing.
About
This Law
I wasn’t very happy about this law when it went through the
legislature. After all the decades of incremental pro-life work, I felt
impatient. Every law that allows abortion prior to a particular point
acknowledges that life before that point is not worth protecting. Not good. But
the actual abolition of abortion bill didn’t go anywhere this legislative
session. So this was at least an increment, OK for now. And also, a trigger
bill passed, to abolish abortion when/if the Supreme Court ever overturns Roe
v. Wade. But the Abolish Abortion people have some persuasive arguments. Bradley
Pierce, executive director for Abolish Abortion Texas talks about their reaction
this week here.
A number of people have been discussing how this bill doesn’t
have any teeth. In the long run that might be true, but Robert Barnes, in his weekly livestream with Viva Frei, has a
different take on the way the bill was designed. Here’s his explanation:
What’s unique about this law is two things. One aspect is
not that unique in that other states have looked at passing heartbeat bills.
Whether that’s six weeks, eight weeks, ten weeks, that can vary. Sometimes it’s
considered, you know— But the earliest a heartbeat can be detected typically is
six weeks. I think the norm is more like eight to ten weeks.
But, putting that side aside, the key to this law is that it is only enforceable by private lawsuit. No government actor can enforce the law. So it doesn’t make it a crime. You can’t be suspended from medical practice. You can’t be fined. None of that. The only people who can enforce it is private citizens bringing a civil suit on the grounds that you did an abortion when the fetus had a heartbeat.
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| Viva Frei and Robert Barnes on their livestream September 5, 2021 screenshot from here |
I’m still not sure how private citizens get the evidence
they need to file a suit. Nevertheless, Barnes explains that it brings a new cause
of action, that a private citizen may now have locus standi to file
suit. “It’s like private attorney general actions.” He says,
It was a smart way of creating the suit, in my theory, in my
view, because the problem was, the people who sued—the various abortion care
providers and pro-choice groups—they sued the state actors. And the state’s
point was, “We don’t enforce this law, so you can’t sue us. You can raise this
as an affirmative defense, which the law allows for; you can raise this as an
affirmative defense if anybody sues you. But that’s the only way you can
resolve this.”
They didn’t like that, so they asked the district court to
declare the law illegal and to enjoin it. The declaration action is still
pending. They do have a right to [sue for] declaratory relief. But they wanted
to stop it from even being enforced, while the declaration relief was pending.
The district court said there’s nobody to enjoin, because
this is a private cause of action law; it’s not a state actor law. Fifth
Circuit said the same thing. So it goes with the US Supreme Court, and the US
Supreme Court splits 5-4 on the injunction aspect.
Barnes says this is why the law was written the way it was: “It
was written so that you could not enjoin it.” Planned Parenthood and the like have
a legal hurdle they can’t seem to get over. They’re enraged, he says, that “the
state legislature came up with a smart mechanism that made it tough to sue
outside of Texas State Court.” He says he thinks it should have been a 9-0
ruling. The three democrat justices and, “not surprisingly, Roberts would have
enjoined it even though there was nothing to enjoin.” He explains,
You don’t enjoin a law; you enjoin somebody enforcing the
law. That’s how federal courts have jurisdiction over state government actors.
Otherwise they’re immune from suit.
Of course, in state court, the declaratory relief action of
the Planned Parenthood case is still pending. That hasn’t been ruled on yet. He
says, “So, really, what they’re mad at is having to face a lawsuit. But they
don’t have any problem filing lots of lawsuits against people. So this is— It
seemed to me a logical extension.”
The Mississippi abortion case is making its way to the Supreme
Court, dealing with whether the standard should be
viability or heartbeat, or life at any point, or whether it’s up to the states
to decide on their standard. Things could change entirely next year.
So, overall, the panic over this Texas law is overblown. But that didn’t stop
the US Department of Justice from filing suit against the State of Texas today.
On what basis is hard to say. In the ACLJ podcast today, Jay Sekulow speculated that the DOJ suit is only for political show. They don’t have a
basis for the claim. They mutter something about national interest. But if they
have an interest in killing babies, while claiming that they are protecting
life, liberty, and property, it’s probably not going to go well.
Meanwhile, the State of Texas has taken no action but to
grant standing to ordinary citizens in their efforts to protect human life.
Abortion
Disempowers Women
Back in the 60s and 70s, during the so-called sexual
revolution, birth control pills were newly available to give women the opportunity
to have sex without the resulting pregnancy. Early court cases determined that
married couples had the right to make those decisions. And I’m not going to
dispute that. Some women don’t do well having a baby every year or two during
their entire reproductive life.
But the idea that women should be equalized with men by
having sex without having to deal with the consequences of sex was not a good
thing for women. It was not a good thing for men either, but you have to
connect a few more dots to understand that.
Before the sexual revolution, meaning during the entire several millennia of human existence, women knew that a possible consequence of sex outside of marriage was pregnancy without a father for the child. It was a burden on society overall, but it was a particular burden on the woman, who would either raise the child alone, probably in poverty, or would deal with the heartache of giving the child up for adoption. Women knew this, and so did men. So if a woman was reluctant to have sex outside of marriage, a man understood that. It wasn’t necessarily that she didn’t find him attractive, or have feelings for him; it was that she had to think about the very serious consequences. So a man was more likely not to push a woman to have sex before he married her. And, if he did, he was more likely to marry her and care for the child—to do what was understood to be the honorable thing.
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| The shotgun wedding scene from Seven Brides for Seven Brothers image found here |
Once "the pill" became available, it gave men permission to
assume a woman could/would avoid the consequences of sex. So he felt even more
free from moral constraints than he did before. But women, while they sometimes
could prevent the consequences, lost the respect that they previously had, and
lost the expectation that sex—along with its consequences—should come within
the marriage covenant.
Add abortion into that mix. If birth control failed, well, what was that to the man? It was her body, her problem. She had been given no promise from him. So she is left in the same predicament as before birth control, but she doesn’t understand how she got there. I mean, she knew about the basic biology. But how could a non-committal involvement meaning no more than a kiss lead her to this predicament? The woman was led to believe that sex meant, “I find you attractive, and I think I might really like you, and I’d better put out so you will like me in return,” rather than, “I want to be committed to you for life, so we can raise our offspring together.”
That was a pretty overwhelming social change. Now, a man
could offer to pay for her abortion. He could pressure her to have one—to relieve
himself of responsibility, not to help her. Or, if she wouldn't abort her child, the courts could force him to
pay child support—and maybe he would follow through and maybe he wouldn’t. But
the consequences of sex without commitment weigh most heavily on the woman. And
using abortion as a de facto birth control further burdens her. The man
tells her, “You weren’t worth marrying; it was just about the sex.” Lust, not
love.
The pro-abortion crowd—rather than correcting the
societal error, doubles down on it. It’s unfair for the woman “to be punished
with a baby,” so let’s give her the right to kill that baby.
Is talking the woman into killing her baby, referring to this preborn person as just a "clump of cells," recovering the
respect and protection she used to earn by abstinence before marriage? Hardly.
I comprehend the desperate feelings a woman has when she
finds herself unmarried and pregnant, and abandoned by the sex partner who
never intended to be father to her baby. But the solution is not to compound
the sin; it is to repent. Let’s stop telling women it’s her body, when another
entirely different person—with a heartbeat and DNA and potential—is the one
whose life is at stake. Often when a woman is shown the developmental level of her
baby, she chooses to step away from abortion herself, despite the challenges
in her life.
We need society to repent of the sin—of killing babies to
get rid of the “inconvenient” consequences of unmarried sex. Texas has declared
its repentant state. Mississippi has declared its repentance. Other states are
doing that. If the Supreme Court got out of the way, many other states would
follow. And some others wouldn’t, but at least we could choose locally.
Individuals are moving ever toward that repentance,
according to polls. The more we recognize the preborn as human life, the more
people repent of their casual attitude toward infant sacrifice.
Part of repentance is re-valuing children. There are about
three dozen families ready and willing to adopt every baby that becomes
available in this country. Maybe we could trust that, as we honor life, every
child would be wanted—even (maybe especially) those whose birth mother can’t
manage to parent them.
Healing of our society can come through repentance. Let’s
restore women to their honored state as bearers of new life, and stop degrading
them as disposable sexual objects unworthy of concern about consequences. And let's never again be silent about the taking of innocent human life.
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