My friend Edward Mechmann has generously allowed us to reprint this from his blog, Stepping Out of the Boat, from Septmber 29. Mechmann is a life-long New Yorker, a graduate of Columbia College and Harvard Law School, and a former state and federal prosecutor. Currently the Director of Public Policy and the Director of Safe Environment at the Archdiocese of New York, all opinions here are his alone, and do not represent official statements of the Archdiocese.
The State of Texas recently passed an innovative and expansive pro-life law that is generating a great deal of questioning and controversy. Let’s take a look at it, and then I’ll add some reservations that I have about it.
Which Abortions Are Prohibited?
The new law (called “Senate Bill 8”, or “SB 8”) is what we call a “heartbeat bill”. It requires doctors to check for the presence of “cardiac activity”, and bans any abortion if that has been detected. Specifically, SB 8 provides that “a physician may not knowingly perform or induce an abortion . . . if the physician detect[s] a fetal heartbeat.” An ultrasound can typically detect a fetal heartbeat at approximately six weeks of pregnancy. This is very significant – abortion advocates estimate that 85 to 90% of women seeking abortion are at least that far in pregnancy.
Are There Any Exceptions?
The only exception in SB 8 is for a “medical emergency . . . that prevents compliance” with the law. That’s unusual for abortion laws – they usually contain some kind of explicit exception for the life and health of the mother, or for pregnancies resulting from rape or incest. Interestingly, the law doesn’t define what a “medical emergency” might be. It is odd for a statute not to define such a crucial term. This puts a lot of pressure on doctors not to risk relying on the exception, which may in fact be the point – the whole law is designed to deter doctors from performing abortions.
Who Does the Law Cover?
SB 8 is very broad. It doesn’t penalize the mother herself, but it applies to anyone who performs or induces a prohibited abortion, and also anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited abortion, and even anyone who “intends” to perform or aid a prohibited abortion. “Aiding and abetting” includes “paying or reimbursing the costs of an abortion through insurance or otherwise.” That means that everyone involved in the operation itself, the clinic staff and volunteers, companies that supply medical products to the clinic, and even anyone in the woman’s family who helps her or provides the money could face penalties under the law. That wide a scope is unprecedented for an abortion ban.
What’s So Unusual About the Law?
It contains some very unusual – unique, in fact – provisions that were designed specifically to make it very difficult for abortionists to challenge it.
Most remarkably, it prohibits state and local governments and their employees from enforcing it. It is usually up to government agencies, like local district attorneys, health departments, or medical boards, to have the authority to enforce abortion laws. Instead, S.B. 8 empowers any person to file a private lawsuit against anyone who violates the law or “intends” to do so. This means that virtually anyone – even you or me – can act as a “private attorney general”.
The penalties in the law are also unusual. A successful plaintiff can get an injunction that prevents a defendant from engaging in any of the prohibited activities, and they can also be awarded at least $10,000 for each abortion the defendant has performed, aided, or abetted, as well as costs and attorney’s fees.
Giving private parties the ability to enforce laws is not unheard of. But it is certainly unusual. This creates financial incentives for people to bring lawsuits who ordinarily would not be able to do so (in legal terms, they would lack “standing”). This also means that potential defendants can’t possibly know if or when they may be the subject of a lawsuit, and where it will come from. There’s no question that this was deliberately done to induce doctors to stay away from abortion.
What Has Been the Effect of the Law?
In essence, it has prohibited the open practice of abortion in the entire state of Texas. Women are still traveling to other states for abortions. Others are still getting abortion drugs by mail through online “telemed” prescriptions. One doctor has already said that he has performed at least one abortion in defiance of the law. But the vast majority of children who would have been lost to abortion are getting a second lease on life. That’s undoubtedly a good thing.
Is SB 8 Being Challenged?
The law was designed to make it hard to challenge in court. Usually, abortionists can sue the government in what is called a “pre-enforcement challenge”. That typically leads to the law being put on hold while the litigation goes on. But with the government banned from any enforcement action, it’s hard to find the right defendant to sue, the right court to sue in, and what kind of relief can be obtained.
Several lawsuits have been filed by abortion advocates, and one person has sued the abortionist who publicly said that he violated the law. That may wind up being the “test case” that will lead to a ruling on the constitutionality of the law. But so far no court has agreed to put the law on hold or even to consider it on its merits. Even the Supreme Court balked at getting involved in the case until there’s been some litigation in the lower courts.
Eventually someone will figure out a way to bring a lawsuit that will allow a court to act. Lawyers are very creative characters.
Concerns About Due Process of Law
I totally agree with the goal of banning abortion or at least making it significantly more difficult to perform or obtain one. But I have real reservations about this particular tactic.
My main reservations have to do with the way law should work. I am a deep believer in the due process of law and the rule of law. Anyone who is negatively affected by a law deserves their day in court. Even people who are committing heinous crimes like abortion deserve to be treated fairly. This is a principle that goes back to the roots of our legal system in the English common law and Roman law, and it’s a principle of the natural law. It is just fundamentally unfair to set up a law deliberately to thwart the right to due process, and to prevent courts from ruling on the constitutionality of a law.
This law also strikes me as a kind of dereliction of duty by the government. It is a principle of law that while private wrongs (e.g., injuries to me or my property) are the subject of private actions, public wrongs (i.e., offenses that injure the entire community) must be enforced by public authorities on behalf of society as a whole. Homicides are the quintessential public wrong, because they harm not just the victim, but all of society. In an abortion, the victim can’t even stand up for himself, since his natural guardian and protector is implicated in the offense.
The government has a duty to protect all its members in order to maintain the common good – a duty that is particularly important when it comes to defending the life of an unborn child. It is not proper for the government to delegate that duty to unknown or random private persons, who may or may not fulfill it adequately.
I have pragmatic concerns as well. I’m afraid that this law will be seen by the Supreme Court as being disrespectful to the rule of law. Courts don’t like it when people try to sidestep or circumvent their authority. The Supreme Court is about to consider the most important abortion case in a generation – Dobbs v. Jackson Women’s Health Organization – in which the continued validity of legalized abortion is at stake. I’m afraid that the swing votes on the Court may conclude that pro-life legislatures and governors cannot be trusted to act in good faith in regulating abortion, and may thus uphold Roe v Wade and its poisoned fruit.
There’s also the danger of using a weapon that our adversaries will turn against us. The lure of consequentialism is very tempting – an appeal to “the end justifies the means”, or even worse, “by any means necessary”, may be seen as the only road to success. But the risks of buying into that pragmatism are very real.
Imagine for a second if a statute were to give anyone in the country the ability to sue the Church over our refusal to recognize same-sex “marriages” or gender ideology, or to refer women for abortions. The potential exposure to litigation and liability would be enormous, and would inevitably chill our freedom to teach what we believe and act accordingly.
In the End
Many people in the pro-life movement have become impatient with gradual and incremental steps to limit abortion, despite the genuine progress those measures have produced. And we certainly cannot afford to be too cautious or even, God forbid, complacent in defending life. But there are always potential unforeseen negative consequences, and there are serious dangers when fundamental principles are violated.
Saving lives is always a paramount objective. But we have to make sure that when we do that, we don’t sacrifice our principles and create other grave harms.