Published September 7, 2021
Pro-lifers should not be afraid of winning. We should cheer Texas’s new law prohibiting abortion after a fetal heartbeat is detected, and we should rejoice as it saves lives and changes the culture.
It is understandable that some pro-life conservatives are worried. We have suffered many losses over the years, and it is easy to assume this victory must have a catch to it, perhaps lurking in a legal penumbra or leftist backlash.
But as Roger Severino explains, this law was a stroke of pro-life genius. It was crafted to be hard to litigate against, especially before it had gone into effect. Its opponents therefore struggled to mount a preemptive legal challenge, and the Supreme Court rightly permitted the law to go into effect.
The key was that that instead of tasking state officials with enforcement, the law allows private citizens to sue those who help a woman obtain an abortion after the fetus has a detectable heartbeat, except in cases of medical emergency. This approach means abortionists will have to be hauled into court for breaking the law before they can challenge it, rather than preemptively suing state officials to stop the law from ever going into effect.
Texas’s law will still be challenged in court, but abortion facilities in Texas may be closed or restricted during the legal battle. The New York Times reported that “what seemed to be happening on Thursday was near-complete compliance with the law without a single suit yet filed…Abortion clinics reported dramatic drops in patients on their schedules. And pregnancy crisis centers, where anti-abortion groups offer pregnancy services, reported surges in phone calls and walk-ins.”
Furthermore, the culture is already shifting as people who relied on abortion as birth control change their behavior, and others learn how early a child’s heart begins to beat. In addition to restricting abortion, Texas also allocated $100 million to support women, babies, and families. Texas has thereby given other states a policy model to follow.
Despite this success, some pro-lifers are concerned, and although we should ignore the trolling of pro-abortion liberals such as Bill Kristol, who says this is a “pro-life setback,” good faith concerns deserve a response.
One pro-life fear is that this Texas law will complicate the upcoming Dobbs case, in which the Supreme Court will hear a direct challenge to Roe and the Casey decision that upheld it. Legally, there is no problem, but the left has never been shy about trying to intimidate Republican appointees into bad rulings, and they have had particular success in pushing around Chief Justice John Roberts.
But this Texas law might also stiffen judicial spines before the Supreme Court rules in Dobbs. Texas has provided a preview of a post-Roe world, in which states legislate on abortion as they do on other matters.
The Roberts Court could have no greater legacy than getting themselves out of the abortion business. Texas is showing that, despite the hysteria of the pro-abortion left and its media allies, the sky will not fall without Roe. Rather, life will go on without a pretend right to abortion on demand—indeed, more lives will go on.
As Texas already shows, law shapes culture, as well as being shaped by it. In particular, abortion on demand has been a boon for irresponsible and abusive men, but we don’t have to live like this. Abortion supporters have been arguing that without abortion men will have to support the women they impregnate, and that the government will need to treat the unborn as persons, to which the pro-life reply is a simple: Yes.
When Roe v. Wade was decided, abortion supporters made a multitude of optimistic predictions—abortion on demand was supposed to end child abuse, child poverty, fatherlessness and much more. These promises were false. We have learned what we should have known then, which is that abortion cannot solve social and familial problems because abortion poisons everything; it hardens the hearts it doesn’t stop.
Just as the supposed benefits of abortion on demand never appeared, so too the prophesies of disaster without it will not come to pass in Texas, and the Supreme Court should take note. That the left and its media allies are already viciously smearing them should only encourage the originalist justices to end Roe for good.
Some pro-lifers are also be concerned about political reprisals from the left, but this should not deter us. To be sure, uninformed Twitter commentators are fantasizing about revenge by flooding the system with frivolous complaints targeting GOP lawmakers. But not only would this strategy fail (the courts deal with false and frivolous claims all the time) the abortion facilities would remain closed in the meantime. Pro-life leaders can endure some legal harassment to save lives.
Similar reasoning applies to fears that the left will use the Texas template to target us on other issues. They will not be dissuaded from this by the right disavowing Texas’s tactics. After all, they have long used harassing tactics against us, as seen in their persistent legal persecution of the Little Sisters of the Poor and Jack Phillips of Masterpiece Cakeshop.
Indeed, the left may hesitate to use Texas’s specific approach against the right, as it would require them to give up state enforcement power in order to avoid preemptive judicial strikes. Furthermore, we would still be able to have our day in court, and we would likely prevail in time, as the rights we care about are actually in the Constitution. But even if Texas has provided a new way for the left to harass us, that is a price pro-lifers should be willing to pay in order to close abortion facilities.
Finally, some pro-life supporters might be concerned that this law makes us look like the aggressors in the abortion war, and they fear that public opinion will swing decidedly against the pro-life cause. They underestimate the support for limits on abortion—and likely underestimate the educational effect of having a heartbeat bill constantly in the news, reminding voters of the humanity of the unborn and the violence of abortion.
After so many years of struggle and defeat, we should welcome this victory in Texas. We should not be so afraid of losing that we never try to win.
Nathanael Blake is a senior contributor to The Federalist and a postdoctoral fellow at the Ethics and Public Policy Center.