Political Editors / September 7, 2021

In Brief: Critics Are Wrong on Texas Abortion Law

Sometimes, principled goals are worth sacrificing for politically.

After Texas enacted legislation that bans abortions after a heartbeat is detected (usually about six weeks), the Supreme Court decline to hear the case. That’s largely because of the law’s enforcement mechanism: Rather than state executives enforcing anything, private citizens do through lawsuits against violators of the law. Yet many conservatives fear that the law will do little other than rally Joe Biden’s base in coming elections.

Andrew McCarthy says that such fears should take a backseat to the ultimate goal: Saving babies’ lives.

One of the objections has to do with the fact that “the Texas law does not expressly specify exemptions to terminate pregnancies attributable to rape and incest.”

It should be noted, however, that rape and incest are not relevant factors in at least 98 percent of abortions. (The Guttmacher Institute has estimated that rape accounts for about 1 percent of abortions, and incest about 0.5 percent.) The act does bar a male who impregnated the abortion patient through an act of rape or incest from bringing a lawsuit under the statute, but it is true that no one else is subject to this bar. The law also provides an exemption if a physician performs an abortion under the belief that a medical emergency exists, but, though it defines a number of pertinent terms, the statute fails to define “medical emergency.” As I understand it, this concept is broadly construed under Texas law, but it is unlikely to include non-life-threatening physical injuries or mental anguish attributable to a rape/incest pregnancy. …

Rape and incest exemptions in abortion restrictions have always been more politically appealing than logically sound. The rationale is that, as noted above, the exemptions green-light only a tiny percentage of abortions while exhibiting compassion for the terrible plight of women victimized by such abuse; thus, they are sensibly said to be a practical and political price worth paying in order to enact restrictions that would protect the vast majority of unborn children.

Nevertheless, the basic point of a fetal heartbeat law is to focus on the patent humanity of the unborn child. The rape and incest exemption would thus defeat the law’s express purpose.

Whatever the political appeal, it would be internally contradictory for the Texas law to posit that an unborn child lacks sufficient human dignity to warrant protection if the child was conceived through an act of rape or incest. Yes, the woman is the innocent victim of the former enormity, and often the latter; but so is the child. If human life begins at conception, then aborting a human life after the detection of a heartbeat is no more justifiable in a rape or incest situation than in any other situation.

He goes on to discuss the political and legal wisdom of the law, all of which is certainly debatable. He rightly notes that Roe v. Wade is a “travesty” “ as a matter of constitutional law,” which Casey v. Planned Parenthood could only uphold in essence while gutting its reasoning. All of that will be litigated not just with Texas, but primarily with Mississippi’s law at issue in Dobbs v. Jackson Women’s Health, a case before the Supreme Court this year.

McCarthy concludes: “For conservatives and pro-lifers, abortion is a matter of core principle, not tactical politics. If we can save unborn children, the downside of saving Joe Biden from steeper polling declines is a risk most of us are willing to run.”

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