The DC District Court’s Judge Brian Hulett last week appeared before Congress’s constitutional counsel, Kavanaugh, to address the question of whether to uphold Texas’s Abortion Access Protection Act, which was overturned in a federal court in 2015, after being passed into law by lawmakers in 2013, by which time the plaintiffs had started implementing it.
The new law, SB 14, is designed to protect women’s health and well-being, but its supporters allegedly injected themselves with “chemicals that had been used in the medical community for decades” to see if they could cause miscarriages.
The supporters of this failed drug-based procedure — mostly pediatricians, health practitioners, and others in the medical profession — allege that these parties were expressly disallowed by a 2014 Texas law, enacted in the wake of HB 2 — the law that mandated admitting privileges for all abortion providers in the state — the injection of chemicals into foetuses to cause abortions.
Judge Hulett offered a sensible and prudent opinion for our purposes: “They may well be right, [but] in the aggregate I think the plaintiffs could not show that they would be irreparably injured unless there was a serious threat to human life,” he wrote. “Likelihood of unintended consequence is a critically important factor, but I conclude that the plaintiffs cannot show that [probable risks of] miscarriage were so important as to justify a risk of irreparable harm.”
The concern over potential physical or neurological harms for both the mother and her unborn child, Judge Hulett observed, has “little predictive value as a basis for forcing women to carry their pregnancies to term, when the existence of such risk would be one of the only tangible factors weighing against that choice.”
Readers on both sides of the issue will likely perceive the work of judicial and legal scholars today more broadly, as defenders of the mother or consumer protections, or as enthusiasts of individual personal liberty. But it’s also important to note that it’s legal experts who should be equipped with knowledge of and expertise in the nuances of political science and democracy. That’s because political science and democracy are basic components of political science and democracy.
Those who want to intervene and defend the rights of women would be wise to understand these more basic principles and to take lessons from the modern work of leading political scientists and economists.
Arguments of several pro-choice advocates about SB 14’s unreasonableness were thrown out of the DC District Court last week. But in the decades since Thomas Jefferson and Benjamin Franklin wrote the first language on America’s founding documents, the philosophical universe they guided the country into has become fuzzy — especially when it comes to a bedrock, foundational right like abortion.
The DC District Court judge deserves great credit for recognizing that in pro-choice societies, that question of abortion has — at least for the moment — become blurry. The parties that Justice Kavanaugh and other members of Congress asked about why Texas could and would provide no care for the women and girls who are harmed by SB 14 are wrong.
Had the attorneys for the parties pursuing SB 14 been smarter, they might have recognized and integrated into their thinking modern references to the distinction between an absolute right and a “government duty to protect” a supposedly absolute right. (Like any other government duty, these scientists might have realized that someone might claim an absolute right to an access restriction, and someone might claim an absolute right to be without access restriction.)
A writer at Thursday’s Wall Street Journal makes the good point that five justices of the Supreme Court failed to find any constitutional basis to “untie” abortion restrictions from bans on partial-birth abortion and thus refused to overturn Roe v Wade. To paraphrase Justice Anthony Kennedy, abortion became “freely available” again in “a right they made exist,” one they wrought. As such, with respect to “the state’s right to limit abortion,” no question of reality remained or promise was fulfilled.
Still, if Judge Hulett’s skepticism about the claimed “unique claim for a heretofore-unknown procedure” rings true, that’s really a mark of the #MeToo moment that the United States, and the District Court in particular, has entered: A Judge Asked Why Texas Didn’t Enforce Its Own Abortion Ban If It’s “Confident” The Law Is Constitutional.
Commentary from NY Mag’s Amity Shlaes, a New York native, was first published in The Week.