Deep in the heart of Texas

If I were pro-abortion (I still refuse the "pro-choice" label, though in some cases it is no doubt subjectively accurate) but too busy to read beyond the mainstream press, I’d be very queasy and alarmed about the Supreme Court’s refusal Wednesday to prevent Texas’s unprecedented new abortion law from taking effect. As a pro-lifer (yes, I do oppose capital punishment; thanks for asking), I’m surprised, but doubt after reading the nitty-gritty that we’ll finally rid ourselves of the 50-year pretense that our national constitution requires the free world’s most permissive abortion regime.

Wednesday’s decision was preliminary, and "complex and novel antecedent procedural questions on which [petitioners did not carry] their burden" mean that it’s not necessarily even an indication that the Supreme Court thinks the law’s challengers are unlikely to prevail ultimately (as denial of preliminary injunction usually implies).

Perhaps the best way to characterize [the situation] is that the law is built specifically to make it as difficult as possible for the courts to temporarily stop its implementation while they ponder its constitutionality. In other words, the law was designed specifically to bring about the situation Texas now finds itself in.

“The reason this is significant is, injunctions only apply to individuals,” Gabriel Malor, an appellate litigator and writer based in Virginia, told The Dispatch. “We have this thing, especially in legal commentary, where we say, ‘Oh, the law was enjoined.’ What we really mean was that an official was enjoined from implementing the law. And here it’s impossible—literally impossible—to enjoin all the citizens of the state of Texas from filing these civil suits. … So we get this weird procedural circumstance where the normal tools that are applied in abortion cases don’t really work here.”

The Morning Dispatch: SCOTUS Lets Texas Heartbeat Law Take Effect

How many citizens of Texas will come forward to file civil suits, given the likelihood that those suits will fail ultimately? I’m afraid that the answer is "None, except those that have very deep convictions (pockets, too) or are fronting for anti-abortion advocacy groups."

But when the smoke clears, assuming the Texas law is ultimately upheld and the Supreme Court’s reasoning effectively reverses Roe, the abortion issue will return to the state legislatures where it belongs. Considering the shift in our sexual culture over the decades, I expect that first trimester abortions will remain legal in most states, which will bring us into line with the rest of the Western world.

But the legislative fights will be ugly, and mainstream media will report limitations on second- and third-trimester abortions in apocalyptic terms.


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