Last week, the Supreme Court decided not to stop a new Texas law limiting abortion after 6 weeks of pregnancy to come into effect. This has spurred a lot of misinformation on social media and in major news outlets
Our director, John Gerardi, is an attorney and graduate of Notre Dame Law School, who have extensively studied the question of American abortion law. He provides the following explanation below:
- Texas’ law does not impose criminal penalties on abortion. Instead, it creates a “private right of action,” a right for individuals to sue abortion doctors or others assisting with abortion, excepting mothers.
- Usually, someone only has the ability, or “standing,” to sue when they are directly harmed, or if they represent the interests of someone harmed (for example, parents or suing on behalf of their children). Aborted children often lack anyone to represent them, since they suffer the harm of abortion at the request of at least one of their parents, who ordinarily represent their children’s legal interest. Thus, given the extraordinary circumstance of the unborn child as an injured person with nobody to represent her rights reliably, Texas decided to extend the cause of actions to others in Texas, in order to give unborn children someone to protect their interests.
- Civil liability (the risk of being sued and having to pay money in “damages” to an aggrieved party) is an essential layer of protection American law provides for protecting innocent life. Consider the case of OJ Simpson: while he avoided criminal conviction (many believe wrongly), he was found civilly liable for his two homicides, and was forced to pay a heavy amount of money in damages to his victims’ families. Civil and criminal liability are the main “risks” criminals hazard when they commit crimes, and deters the conduct of potential criminals. Subjecting abortion doctors to lawsuits is not tantamount to “terrorizing” them, as some have described it. It is simply putting the public on notice that there are consequences for assisting in this particular act of homicide.
- The Texas law does not provide exceptions for pregnancies that are the result of rape or incest, which is presented as evidence of the law’s cruelty. First, while incest is often attendant to rape, incest by itself is not sufficient reason to kill an innocent child. The fact that a child may have genetic abnormalities as a result of incest does not lessen that child’s human dignity, any more than other physical or mental disabilities. It is a distinct form of “ableist” and near-eugenic bigotry to assume that those with disabilities are of lesser human worth on the basis of presumptuous arguments about their likely “quality of life.”
- It is morally incumbent upon all of society and the political community to do everything possible to assist mothers who become pregnant through rape, through social services, financial assistance, and every other possible method. However, we cannot lose sight of the human dignity of the child. I myself am acquainted with several persons who were conceived through rape: who are mothers, fathers, siblings, spouses, and friends, people with value and importance and dignity. There are far more couples who wish to adopt than babies available for adoption; we must do everything in our power to promote this loving option. We cannot make “value judgments” about a child’s future based on the circumstances of their conception.
- The Supreme Court did not “uphold” Texas’ law, or overturn Roe v. Wade. Rather, the majority on the Court simply held that they could not impose an injunction (a court order telling a person to stop doing something) against the state of Texas for a law that its officials (district attorneys, the governor, the attorney general) do not enforce. Texas’ law is enforced through private individuals filing lawsuits, not by Texas public officials initiating criminal or civil actions.
- The Supreme Court will ultimately decide the central question at the heart of this debate this year, when they hear the case entitled Dobbs v. Jackson Women’s Health Organization. In this case, the Court will actually decide the central question of whether states can ban abortion for any duration of pregnancy, particularly prior to fetal viability. If decided correctly, this could be the case to overturn Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey, the Supreme Court cases that have enforced legal abortion for all nine months of pregnancy and for any reason as a near-untouchable constitutional right since 1973. The Court will hear oral arguments for the Dobbs case in October, and then will issue its final decision likely in June of 2022. These cases are constitutional travesties, that created a constitutional right that is found neither in the Constitution’s text, nor in American legal or constitutional history.
- Texas’ law imposes civil liability for abortions performed when fetal heartbeat can be detected, usually around the sixth week of pregnancy. Some pro-abortion advocates have tried to argue that referring to this as “heartbeat” is misleading, and have argued that this is instead “electromagnetic pulses” or “cardiac pole activity.” This is semantic silliness borne out of a desire to avoid identifying the fetus with human vital activity. While the first signs of heartbeat do not emanate from a fully and perfectly formed heart, this is the beginning of heartbeat as we understand it, which doctors monitor for the sake of charting the unborn child’s vital activity.