Biden Wants to Change the Subject. Abortion to the Rescue?
Eager to Change the Subject Away from Afghanistan, Biden and Democrats Pounce on SCOTUS, Texas' New Abortion Law.
After the shameful American surrender and withdrawal in Afghanistan over the past 2 weeks - leaving Americans behind after an armed conflict for the first time in US history - President Biden and Democrats understandably want to change the subject.
So it was no surprise that Democrats, President Biden, and their media enablers pounced on the US Supreme Court’s refusal, 5-4, to grant an injunction against Texas's novel new abortion law that was signed into law in May and took effect September 1. The hysteria was palpable. More Down Syndrome and other disabled babies, one wag complained. This is what Eugenics looks like:
Actually, reading the Texas law and the SCOTUS denial of the ACLU’s petition to enjoin the new law is instructive. While I’m not going to delve into the abortion issue per se - there are plenty of people and places that have been doing that since Roe v. Wade in 1973- it is helpful to put things in perspective. Starting with the facts.
First, we are talking about elective abortions. No state has prohibited abortions even when the mother’s physical health is endangered and for severe fetal abnormalities.
Second, the Supreme Court has already placed a legal challenge to Mississippi’s new abortion law, Dobbs v. Jackson Women’s Health, on its docket. SCOTUS is back in session next month and will both hear and rule on the law by the end of June 2022 (just in time for the mid-term congressional elections. Yay). That law prohibits abortions after 15 weeks of gestation, very similar to restrictions in most European countries. In fact, let’s consult a study of Europe’s abortion laws by the Charlotte Lozier Institute:
“Out of the 42 European countries that allow elective abortion, 39 countries limit elective abortion to 15 weeks’ gestation or earlier,” the study found. “The majority of these 39 European countries set gestational limits for elective abortion at or before 12 weeks’ gestation – five European countries limit elective abortion to 10 weeks’ gestation (Croatia, Portugal, Serbia, Slovenia, Turkey), [while] 27 European countries limit elective abortion to 12 weeks’ gestation.”
Few countries outside the United States are less restrictive. North Korea and China come to mind.
Third, the Supreme Court acknowledges the novel nature of Texas law and is mindful of the constitutional issues. “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden,” the SCOTUS denial reads. “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
In other words, if you think the law is unconstitutional, file a suit, probably starting in state court, but you haven’t met our conditions for declaring an injunction. SCOTUS explains: “To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a ‘strong showing’ that it is ‘likely to succeed on the merits,’ that it will be ‘irreparably injured absent a stay,’ that the balance of the equities favors it, and that a stay is consistent with the public interest.”
One of the reasons cited was the novel enforcement mechanism - a private right of action, not official government enforcement.
For the record, I’m not fond of expressly giving private citizens the ability to enforce a law in court. Since 1986, the food industry has dealt with that under the Safe Drinking Water and Toxic Enforcement Act, known infamously as Proposition 65. California voters that year gave trial lawyers the ability to go to court and have chemicals “listed” and force warning labels for things that may cause cancer, birth defects, or other reproductive harm. That is why Prop. 65 warnings are so ubiquitous in California, including salad bar restaurants that serve beer (alcohol can cause reproductive harm), that most people ignore them. But it hasn’t stopped the food and beverage industry from spending some $13 billion over the past 35 years to defend itself and its products from trial lawyers.
But unlike Proposition 65, where the California government still has a regulatory and enforcement role, not so with the Texas abortion law. SB8, as it is called, permits private citizens to enforce the law against just about anyone (except the woman having the abortion) who performs, aids, and abets in an illegal abortion after a fetal heartbeat is detected, which the media reports are somewhere between six and eight weeks after gestation. If someone wins a case in court against, say, an abortion doctor, it’s a $10,000 fine.
Back to SCOTUS: “Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law.”
That the new law has had a chilling effect on abortion clinics in Texas is undeniable. But how many abortions does the new law actually affect? After all, we’re told that women typically don’t even know they are pregnant until 8 weeks or longer.
But evidence may suggest otherwise. Scott Hounsall at RedState.com:
According to Abort73.com, a site that compiles abortion statistics, a maximum of 40.5% of abortions occurs within the first six weeks of pregnancy, which in Texas are all still legal. In weeks 7-9, another 37.5% of abortions take place. In total, 78% of all abortions take place before the beginning of week 10.
While heartbeats can possibly be detected as early as weeks 6 or 7, WebMD states that the majority of doctors don’t test until after eight weeks with ultrasound, and not until 12 weeks with fetal doppler. If we attribute half of the week 7-9 abortions as a split, that would be 18.75%. That would suggest that 59.25% of all abortions occur before a heartbeat is even detected, which, again, is still legal in Texas. While the law contains a requirement for doctors to verify a heartbeat before an abortion is performed, it does not specify how that verification must take place. If doctors chose to verify by doppler (and you know there will be some who want to skirt the intent of the law. . . it would extend the potential for abortions past 10 weeks, leading to the potential of 80% of the abortions taking place previously to continue.
Efforts to undermine private rights of action to enforce the Texas law are already at work, even though many of the usual corporate wokeists are largely silent on the Texas law. As reported in the Washington Post:
On Friday, Uber and Lyft said they would cover legal fees for drivers sued under the law. Meanwhile, the Web hosting provider GoDaddy told Texas Right to Life to find a different provider for prolifewhistleblower.com, a site that invites supporters of the law to report people who continue to help women obtain abortions.
“Last night we informed prolifewhistleblower.com they have violated GoDaddy’s terms of service and have 24 hours to move to a different provider,” the company said in a statement.
A few other companies have also taken action. The online dating sites Match and Bumble, the latter of which is based in Austin, have set up funds to help employees who may be impacted by the ban.
I doubt even the most ardent pro-life activist wants to sue Lyft and Uber drivers for taking women to places where abortions are conducted. That concern strikes me as slightly hysterical.
President Biden, who has been on every side of the abortion issue since beginning his public career, quickly pounced. So did Nancy Pelosi, who promises to bring a pro-abortion bill to the US House (that should really excite vulnerable Democratic incumbents with large Catholic constituencies). Senate Judiciary Chair and Assistant Majority Leader Richard Durbin wants to investigate the Supreme Court’s so-called “shadow docket.” Those are decisions the court is, with increasing frequency, called up to make when emergency applications are filed. But Congress has little effective control over their sister co-equal branch of our federal government.
Of course, a few political consultants and commentators, such as Dick Morris, who famously used to consult simultaneously for Democrats (Bill Clinton) and Republicans (Trent Lott) and who all-out predicted a big Mitt Romney election victory in 2012, says this issue is a gift to Democrats. But is it? Polling is all over the map - it depends on how you phrase the questions. The best polling I’ve seen suggests most Americans favor limits to abortion, but not an outright ban nor unfettered abortion at any time for any reason, which is what most Democrats seem to support.
We have a Supreme Court case coming (Dobbs) next summer. No one knows how they’re going to decide the question. Abortion proponents will claim that reversing Roe v. Wade, a badly-reasoned opinion that invented a right (privacy) on an issue (abortion) that was silent in the Constitution, will be catastrophic for women’s “health” (never mind the health of the unborn child). But in reality, it would simply return the issue back to whence it came before Roe - the states. And most states already restrict abortions after 20 weeks of gestation - only 7 provide for unrestricted abortion.
With all kinds of Biden and Democratic-inspired looming crises over the next 14 months, from increasing inflation, massive tax increases, the repercussions from the Biden southern border fiasco, and a new potential for terror attacks, we’ll see. SCOTUS’ refusal to enjoin the Texas law really doesn’t directly affect many people, especially outside of Texas (other than stirring passions among the uninformed). Democrats will need something better than this if they want to stem their coming losses in 2022, if not before. How SCOTUS decides the Dobbs case will matter, but even then, how will that ultimately play out if it affects less than 20 percent of elective abortions?
Losing a little abortion access is one thing; all that we lost and unloosed in Afghanistan is quite another and much bigger, short and long term, no matter how much Biden and Democrats want to wish it away.