Left Panics Over Texas Abortion Law
BUCK: There’s something trending right now on social media. You may not have seen if you’re not as active on social media as Clay and I are. “Christian Taliban” is what is trending right now. That’s the phrase, and it’s a reference… It has nothing to do with Afghanistan, really. It’s a reference to Texas bill SB8. This is a fetal heartbeat bill in the state of Texas.
The big news today is it goes into effect; the Supreme Court has decided not to put a stay on the bill. Now, Clay and I are going to break down and Clay will bring in his legal expertise in a moment, some of the specifics of the bill because the mechanisms of it are fascinating. I just wanted to give you some of the broad strokes.
The right to life is a central battle, I believe, for the moral compass of this country and for conservatism overall. And we are at a point now with a Supreme Court that is pretty… Well, calling it solidly 6-3 conservative leaning might be too much. But certainly, for the first time in my lifetime, you could see an overturning of Roe v. Wade, and perhaps Planned Parenthood v. Casey or a combination thereof.
And it could happen as soon as this June. There’s already a Mississippi law that has been challenged. It’s gone up to the Supreme Court. I believe it’s a ban on abortions after 15 weeks, but I should check up on that. Because I’m not as up on the Mississippi bill. In the Texas bill, they call it — you can see, Planned Parenthood released it.
They’ll refer to it as a “cardiac activity bill,” which is just a euphemistic way of saying tiny heart. Tiny heartbeat bill. So you’re not allowed to… Well, actually what it does, because you have to be specific about this. Is it deputizes individual citizens — not the state of Texas — to bring suit against. not the woman who has an abortion after fetal heartbeat has been detected, but the provider of the abortion, suing for damages up to $10,000.
Clay, this involves a whole lot of moving pieces where they’re essentially going to make it more challenging for providers to give abortions after the heartbeat is detected. It has to do with legal fees. It has to do with standing, a whole bunch of things. Break some of it down for us.
CLAY: Yeah, so this is… (chuckles) Let me start here. When you are in law school and you study Roe v. Wade, regardless of what your preconceived notions are as it pertains to abortion — strictly from a legal perspectives — Roe v. Wade is one of the messiest, least logically consistent opinions that has ever been written by the Supreme Court.
BUCK: Bad law.
CLAY: Yeah.
BUCK: Bad law.
CLAY: It’s just there’s a great legal aphorism, Buck, it’s that tough cases make bad law. There’s almost no way to read Roe v. Wade and think to yourself, “Okay. I can understand what’s going on here. The Supreme Court justices decided that they would want abortions to be legal, and then they did whatever it took to massage, to move, to blow up, all these different aspects of the existing Constitution to make Roe v. Wade into law.”
So what has been going on ever since that law… I believe 1973. It’s been a while since I took the bar exam. I think I’m right. Roe v. Wade came out in 1973. What happened since Roe v. Wade is many people out there — the right, the left, reasonable people — have looked at Roe v. Wade and have said, “This is a broken ruling. Is it possible do make sense of this?”
I don’t claim to know what’s going to happen, Buck. But legally, you are right. In theory, there are six Supreme Court justices who are willing to adjust and/or change and/or overturn Roe v. Wade. I think what’s going to happen is the Supreme Court is eventually — and I don’t know if it’s going to be this year, next year, or five years from now.
Because with the Roberts Court, it is very political, and oftentimes, he doesn’t want to step into a political mess. They try to have really narrow rulings. I think what’s likely to happen is abortion is going to be sent back to the states, and state legislatures — like what’s going on in Texas right now — are going to be able to make their own decisions as it pertains to abortion law.
That’s what I think is going to happen. And that is, in some ways, legally, going to create even more of a mess, right? Because you’re going to have a law in New York that could be drastically different than New Hampshire. And certainly the law in New York is going to be a lot different than Alabama. California is going to be a lot different than South Carolina. All these different hodgepodges of states. But that’s kind of what we have right now.
BUCK: Well, we have that with gun laws, and then you have that with a lot of things.
CLAY: You have that with everything. You have it with lotteries. You have it with assisted suicides, which is legal in some places not legal in others. And so it’s going to be a big mess. But I do think that they are going to uphold some of these laws like Texas, and then there’s going to be all these different challenges.
BUCK: The mess, as Clay says, would be a huge advance forward for the right-to-life movement. I think it would be an earth-shattering decision for the left because abortion is essentially the sacrament, the rite — R-I-T-E, better way of saying it — of the left. They believe it should be absolute. There can be no restrictions, whatsoever.
There is no right — and this is a fabricated right that they treat the way they do, the right — to kill a preborn baby in the womb. And so this would strike down what we agree is bad federal law. So at that level, they should have states like Texas and probably Mississippi, and, you know, other red states would have some pretty…
Clay, I don’t even know how many states would have total bans. A lot of them would have what they have in Europe, by the way, which is time restrictions, as in fetal heartbeats and beyond. That’s likely to affect a lot of places. What I found fascinating about the SB8, the Texas bill that is now going into effect is it allows people to bring suit against the providers.
It doesn’t allow the abortion provider to get legal fee damages, even if they win, from the individual bringing the suit. And beyond that, it essentially creates a situation where women are not being sued. Women are not being imprisoned. It goes after providers who give an abortion after a fetal heartbeat is detected. And allows monetary damages.
So it essentially opens up the floodgates of lawsuits. And incentivizes people who are pro-life, financially incentivizes them — never mind, of course, the moral incentive — to bring lawsuits against providers. And, I mean, Planned Parenthood is just on the warpath today. You’ve got, you know, “Christian Taliban” trending.
The shrill nature with which the pro-abortion left reacts to anything like this is honestly just deeply unsettling at a human level. They act like this would be the worst thing to happen in this country, certainly since slavery. The left believes that a pro-life surge in this country would be absolutely horrific.
CLAY: I think there is no doubt. That is the drumbeat that they did use to mobilize anything associated with the Supreme Court, and we talked about it yesterday, the Brett Kavanaugh hearings, the Amy Coney Barrett hearings. The reason why those hearings were so wildly, so wildly — especially Brett Kavanaugh, so wildly — and awfully divisive and dishonest is abortion. Right? I mean, that’s the essence of the entirety of the anger about Kavanaugh and Amy Coney Barrett.
BUCK: The ferocity over that was all about abortion actually. That’s why people thought they were being honorable by lying about Kavanaugh. Sorry to interrupt.
CLAY: No, no, no. You’re right. It’s also interesting, the reason why Amy Coney Barrett was not as wildly, outlandishly negative, was because of the timing. Because Democrats reason afraid of turning off suburban women by going aggressively after Amy Coney Barrett — a mother, I believe, of six children — and basically, if you talk to anybody at Notre Dame, one of the most beloved people on the Notre Dame campus, both as a teacher, and as a human being. And they recognized that she was a tough target in a way that Brett Kavanaugh wasn’t because he’s a white guy and Democrats can go balls to the wall after a white guy over abortion in the way they can’t with a woman over abortion.
Right? So that is the essence why the battle was so intense as it pertained there, even though Amy Coney Barrett was actually changing the overall makeup of the court. Right? Because she was replacing Ruth Bader Ginsburg whereas Kavanaugh was just stepping in for Justice Kennedy. So this is the fault line. And I’m curious, for people out there who are just reading the tea leaves and trying to assess where we’re going, what is John Roberts going to do? Right? Because he has been an incrementalist. He has been an institutionalist. He has been someone who has tried not to rock the boat, in an aggressive fashion.
BUCK: For the first time in 50 years, we can agree, Roe is in jeopardy as a legal decision right now for the first time — real legal jeopardy — or at least, maybe you could say since Planned Parenthood v. Casey.
CLAY: That’s why I’m pointing to John Roberts. Because as an institutionalist, a lot of times, they don’t want to actually directly overturn a case. Right? They try to avoid it. They decide a case narrowly, which is why I think they’re going to try to finesse it in a way that allows states to have more power.
As opposed to overturning federally Roe v. Wade in some sort of aggressive fashion, they’re going to allow incrementalism from the states. Really the legal strategy is, “Hey, see how far we can go in terms of restricting abortion on a state-by-state basis.” We’ll find out where the Supreme Court draws that line.
BUCK: And to be clear, that was the Scalia argument. That was Justice Scalia’s line on this. I heard him making the case on this myself when I was in college. That it wasn’t that the Supreme Court would say, “There’s now a federal ban on abortion,” it would be that it would go back to the states, and there would be state determinations.
CLAY: That’s right. But I think a lot of people don’t understand that from a legal perspective, Buck. They think, “Oh, we’re going to totally overturn Roe v. Wade.” What’s more likely, I believe, is the incrementalism there, would be we’re going to give the power back to the states to determine what is and what is not legal as it pertains to abortion inside a state border.
BUCK: I am hoping that Roe gets struck down. That will happen in June, if it does happen. But we will have to wait awhile for it.
