A deeply polarizing new law in Texas takes the person who cares about unborn children and asks him or her to become an apologist for a vigilante system where average citizens are abortion bounty hunters.
With all due respect, you can count me out.
I’m not here to quibble with the Supreme Court’s 5-4 decision not to enjoin a Texas law that bans abortions after a fetal heartbeat is detected—that was a complex legal and procedural decision over which reasonable people can disagree. Nor am I here to talk about the political backlash that may result from this, or whether Texas handed Biden “a lifeline” (although that’s entirely possible).
But I am here to suggest that the law hinders my ability to persuade others to value the dignity of life and to create a culture of life. If you care about changing minds and changing the culture, that’s a huge problem.
It’s hard enough for conservatives to talk about the volatile issue of abortion when they are simply defending the dignity of life of the unborn child. But imagine making the anti-abortion case when doing so means you have to defend, I don’t know, allowing people to sue Uber drivers. Suddenly, you are forced to make a choice: Either go against what is ostensibly the “pro-life” side (the Texas law) or defend the indefensible (the Texas law). As The Wall Street Journal mused, “Sometimes we wonder if Texas Attorney General Ken Paxton is a progressive plant.” (Disclosure: My wife previously served as a consultant for Paxton’s campaign.)
With the Texas law, a bedrock conservative cause has taken the issue of the unborn child’s right to life (in which we have a legitimate claim to the moral high ground) and traded it in for a lemon.
A few years ago, conservatives shrewdly focused on issues like late-term or “partial-birth” abortion—areas where there was a broad consensus, and areas that put the other side in the unenviable position of making a lose-lose choice.
Texas flips the script. In defense of this law, conservatives are attempting to do something patently unfair to women and anyone who “aids or abets” them.
It also shifts the identity of someone who opposes abortion from being a devout modern-day William Wilberforce to being a glorified Dog the Bounty Hunter.
If you are a conservative who is trying to model a compassionate lifestyle in your community and persuade people to embrace a culture of life, your otherwise reasonable and legitimate points are now lumped in with what is a transparently political stunt. This is true even if you’re someone who simply thinks that Roe v. Wade, which invented a new “privacy” right, was wrongly decided. (Anyone actually involved in crafting of the 14th amendment in 1868 would have been surprised to learn they were legalizing abortion.)
It boils down to what conservative commentator and attorney David French calls “legal gamesmanship.”
It’s also entirely possible that this law will set a precedent that will backfire on conservatives. As French told me, “What happens when, say, the state of New York says, ‘We’re going to ban the sale of all semi-automatic pistols and rifles. But we’re not going to enforce the ban, but if anyone sells a pistol or rifle, you can sue them for $10,000 in attorneys’ fees?’”
The bottom line? “Be careful what you wish for,” he warns.
The timing here is also problematic. This is not a movement with nowhere to go and nothing to lose. Next term, the Supreme Court will rule on a case that could completely overturn Roe and Casey v. Planned Parenthood (the 1992 decision, which upheld the right to abortion, but shifted the standard for restrictions).
But even if the court fails to go that far, the most likely outcome would probably be a ruling allowing states to ban abortions after 15 weeks. After 50 years, conservatives are closer than we’ve ever been to achieving the goal that inspired many of us to get involved in politics to begin with.
In recent months, Justice Amy Coney Barrett has been cheered for taking principled stances that undermined the notion that she was just some sort of Republican hack. While her recent vote to deny an emergency appeal in Texas does not, in my mind, undermine that brand, it’s certainly not helpful.
Ideally, the goal would be to use this interim time to gird your loins and buttress your credibility for what would surely be an explosive landmark political decision. The pyrrhic victory in Texas has complicated that. Rather than expanding the Overton Window and making next year’s SCOTUS decision appear measured in contrast to the Texas law, it’s more likely the two will be lumped together in the public’s imagination.
The bottom line is that this is a counterproductive idea that was thrust upon us by reckless and arrogant activists from the Lone Star State.
Blame it on Texas. Don’t blame it on me.