Texas and abortion

On May 19, 2021, Texas Governor Greg Abbott signed into law the most restrictive abortion bill in the country, Senate Bill 8 (“SB 8”), claiming “our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion.” On August 31, the U.S. Supreme Court allowed that law to go into effect by a midnight vote of 5-4 with four of the majority votes cast by justices practicing as Roman Catholics and one by an Episcopalian raised Roman Catholic. The deciding vote was placed by Catholic justice Amy Coney Barrett who as a law professor at Notre Dame was outspoken in her religious objection to abortion. I don’t think anyone would seriously argue these are coincidences. All four dissenting justices, including Republican appointee Chief Justice John Roberts, wrote dissenting opinions. Justice Sotomayor spoke for a consensus of legal experts in calling the law “flagrantly unconstitutional.”

In contradiction to the constitutional right to terminate a first trimester pregnancy guaranteed by the seminal 1973 Supreme Court opinion, Roe v. Wade, SB 8 effectively bans any abortion after six weeks. It does so through a novel method designed to avoid judicial scrutiny – a vigilante system in which individuals are awarded a minimum of $10,000 for turning in anyone performing or assisting anyone in obtaining such an abortion. Like the Salem Witch Trials, the system is set up to pit neighbor against neighbor with stakes of financial devastation.

This fall, the Supreme Court will hear a case involving the constitutionality of a Mississippi law banning abortion after 15 weeks. The law clearly violates Roe, as confirmed by a panel of the 5th Circuit Court of Appeals, one of the most conservative in the country. Almost eighty briefs have been filed in support of the law, almost all by overtly religious organizations and individuals or those closely affiliated with the religious right. The religious nature of the dispute and the sides of that dispute are quite clear.

Of course not all religious groups, or even Christians, are opposed to abortion. A 2021 Pew Research survey found that majorities of white nonevangelical Protestants (63%) and black Protestants (64%), as well as a slight majority of Catholics (55%), believe abortion should be legal in all or most cases. It is interesting that Catholics as a group favor legality despite the official position of their church opposing it. The primary opposition, however, comes from white evangelicals, 77% of whom believe abortion should be illegal in most or all cases.

Surveys of Christians opposed to abortion have identified as a primary justification their belief that from conception onward an embryo is infused with a human soul. They understand their religion to recognize no morally significant distinction between an adult, a newborn infant, and a newly fertilized egg because all contain a human soul, which is the essence of one’s God given identity. I have discussed this hypothesis at length in Cross Examined demonstrating the many bases for my conclusion that this soul is merely an illusion, representing an ultimately incoherent concept repeatedly refuted by our current understanding of the natural world. I have no illusions of my own, however, that these arguments will convince any significant number of them.

As I discussed in Cross-Examined, when Roe was passed, abortion was not viewed as the religious or political litmus test it is today. The opinion was written by a lifelong Christian Republican and passed with a 7-2 majority composed of five Republicans and two Democrats. Immediately following the opinion there was no great outcry from Christian conservatives. It was not until years later with the formation of the Moral Majority, a religious/political movement aligned with the Republican party, that abortion was moved to the front of the agenda when it became clear that abortion was better at motivating Republican voters than tax exemptions for racially segregated schools. Since that time, abolishing abortion has been the issue motivating a large percentage of the Republican base – particularly those identifying as evangelical Christians.

These voters refer to themselves as “pro-life.” Many claim their staunch position on abortion reflects their Christian values. But Jesus said nothing about abortion. On the other hand, he did talk quite a bit about helping the poor, the sick, the outsiders, and the less fortunate. The Republican party, with whom Christian conservatives have been aligned for decades, has consistently stood against expanding benefits to these groups. The party disfavors welfare and food stamps for the hungry, health care for the uninsured, subsidized pre- and post-natal care, and universal pre-school. Many Republican controlled states, including Texas, refused to expand Medicare under the Affordable Care Act.

A true pro-life platform would promote the flourishing of all lives - refugees’ lives, women’s lives, black lives, poor lives. But let’s put that aside and assume the singular goal of reducing abortions is a legitimate one, justifiably more important than any other. Ample research has shown that the best way to accomplish this is to do the things Democrats have been trying to do for years – provide universal health care, widespread access to contraception and family planning services, and comprehensive sex education. Fully fund Planned Parenthood, whose entire mission is to provide these very types of services.

If the Republican party really wanted to reduce abortions, it would support these efforts and do everything in its collective power to ensure that women have planned, healthy pregnancies. Instead, its only approach has been to pursue abortion bans despite clear data showing this only endangers women and their babies without actually reducing abortions. Between 1981 and 2016, the sharpest declines in abortion rates occurred under Democratic Presidents. The rates dropped most under the leadership of President Obama and continued to decline after he left office. Most everyone agrees the reason for this is because access to contraception is key in preventing pregnancies and because under the Affordable Care Act contraception coverage became more widespread. Even though some states enacted new abortion restrictions between 2011 and 2017, by 2017 57% of the nationwide decline occurred in states that had not enacted new abortion restrictions.

To the extent there may have been any doubt about the effectiveness of increasing the availability of contraception, it was shattered after a four-year experiment in Colorado showed the abortion rate collapsing once the state offered free contraceptive devices over the objections of Republicans. So why does the Republican party oppose these measures? Why does it oppose the ACA’s contraceptive mandate? Because reducing the number of abortions has never been its real aim. It has needed to keep the issue alive to motivate evangelical and Catholic voters it might otherwise lose. It has needed to keep fanning the culture war in the name of “traditional values,” and encouraging the widespread use of birth control doesn’t fit that concept of tradition in which women are meant to be full time mothers, children are a gift from God, and sex is only for procreation.

But now, thanks to the new majority of the Supreme Court, the Republican party is the dog that caught up to the car. It can no longer simply virtue signal about banning abortion. Roe is no longer the immovable object that can be railed against indefinitely, the golden goose that consistently delivers outraged voters to the polls for Republican candidates. SB 8 is the beginning of a post-Roe world in which Republican candidates will have to endorse and defend a future without access to medical care for abortions. We are about to see what that world looks like in Texas.

There are a few things of which we can be sure because surveys have revealed the consequences of requiring women to bring unwanted pregnancies to term. More pregnant women will experience health complications such as eclampsia and even death. More will stay with abusive partners. More will experience anxiety, depression, and suicidal thoughts, and some will act on those thoughts. More will drop out of school or promising career paths and become unable to meet their financial needs. Their dreams will be deferred until they shrivel like raisins in the sun. For those forced to carry the child of their rapists, for which SB 8 makes no exception, one can only imagine the psychological torture inflicted. And there will be more dead mothers and children. States with the most restrictive abortion laws have the highest maternal and infant mortality rates.

SB 8 is triggered when a woman is six weeks pregnant. This is only two weeks after a woman menstruating regularly misses her period, which in most cases is the first suggestion a woman has that she may be pregnant. Many women won’t know they are pregnant before their window to obtain an abortion is past. This is especially challenging for teens that must first obtain either parental consent or a judicial bypass from a court, narrowing that window even further. And because SB 8 has forced all Texas abortion clinics to suspend operation and likely soon close, there will be nowhere for them to go. The results will be enormous suffering and hardship for tens of thousands of young women, not to mention the unwanted children born to parents that may come to resent them.

But what of the other side of the ledger? What will SB 8 and others soon to be modeled on it do to reduce suffering? The pro-life position will surely be that it will reduce the suffering of the countless six-week-old fetuses that now won’t be aborted. So let’s consider that. At six weeks of gestation, there is no fetus yet but only an embryo the size and shape of a baked bean. It is actually only four weeks old because the pregnancy clock starts at the parent’s last menstrual cycle. Proponents of SB 8 call it a “fetal heartbeat” bill, using the slogan, “If a Texan’s heartbeat is detected, his or her life will be protected.” But the six-week embryo has no heart as we know it. The valves that create the sound doctors listen for with a stethoscope don’t exist. What Texas politicians call a heartbeat is merely electrical flickering from a rudimentary cluster of cells that has only recently become detectable at all, and only through the use of an ultrasound machine. It represents the beginning of cardiac development, not the end.

Nor does the six-week embryo have a nervous system or brain as we know it. As described by Dr. Michael Ganzzaniga, one of the world’s leading researchers in cognitive neuroscience, even by week thirteen, “the fetus is not a sentient, self-aware organism . . . it is more like a sea slug, a writhing, reflex-bound hunk of sensory-motor processes that does not respond to anything in a directed, purposeful way.” No nervous system even becomes cohesive until around week seventeen – eleven weeks later. By week six, the embryo represents just a barely developed cluster of cells which cannot experience pain or suffering.

Perhaps those supporting SB 8 would argue that forcing women to carry their unwanted embryos to term will result in greater happiness to them and their babies, which would otherwise never be born. With respect to the mother, such an argument would have to ignore the fact that 95% of women receiving abortions report being happy with their decision over five years later, from which we can infer they would be equally unhappy if denied that decision. It also assumes that living as an unwanted child of a mother forced to carry the child to term would be better than never being born at all. But how could one ever demonstrate this? Studies have shown that the children of women denied abortions, including those already existing, suffered in their development and were more likely to live below the poverty line. Denying abortion access increases the suffering of the entire family.

I believe we all intuitively recognize a morally significant difference between a day-old fertilized egg and a day-old infant. Our empathy is triggered by the suffering of sentient creatures, but a six-week embryo is neither sentient nor capable of suffering like an infant. It is closer in nature to its component parts – the sperm and the egg. A thought experiment to demonstrate this is to ask yourself, if running through a burning fertility clinic you come across a box of 10,000 fertilized eggs and a two-day-old infant but you can only carry one to safety, would you even hesitate about your choice? The standard pro-life position, that human life begins at conception so that a fertilized egg is morally equivalent to an infant, should mandate you taking the box and leaving the child behind, for you would be saving 10,000 souls over one, but I don’t believe even the most ardent pro-lifer would actually do this.

Pro-life proponents express little to no indignation regarding the massive number of fertilized eggs produced and terminated naturally through sexual intercourse. Fifty percent of fertilized eggs wash out during menstruation. According to Dr. Valerie Tarico, Michelle Duggar of the famous reality television show “19 Kids and Counting” flushed between seventeen and seventy-five embryos to get the family she has. Where was the demand from pro-lifers for women like Mrs. Duggar to use contraception, which would have prevented this massive loss of “life?” Likewise, you rarely see pro-lifers attacking fertility clinics that provide in vitro fertilization (IVF), which results in the destruction of millions of embryos each year. While 77% of white evangelicals believe abortion should be illegal in all or most cases, only 14% are opposed to IVF. The position of those protesting abortion but not fertility clinics is impossible to reconcile with their stated reasons for being pro-life.

Returning to the fallacy of the beard discussed in Cross Examined, I believe we all feel deep down that it is sometime in the nine months between conception and birth that the fetus becomes a fully realized human being, even if we cannot clearly identify exactly when that occurs. Roe v. Wade was a judicial attempt to codify this by setting a schedule based on the state of medical knowledge at the time. The first trimester endpoint of Roe may seem arbitrary, for surely no one seriously believes some magical conversion occurs at that precise point, but Roe’s continued support by the majority of Americans suggests it accords with most of our feelings on this admittedly difficult subject. To recognize the fallacy of the beard is to acknowledge that some point of demarcation must be identified.

I also think most people see the abortion question as a balancing of interests. For some period after contraception, the embryo is too unlike fully formed humans to merit the same panoply of protections, and so the interests of the mother, who is a fully formed human, outweigh it. The Roe Court identified this as the first trimester in which the primacy of the mother’s rights over the embryo is absolute. At some point, however, the embryo becomes closer to what we consider fully human, and we see its interests more closely approach, if not overtake, that of the mother. Here there is more disagreement, and it is in this latter area that the Roe court left regulation of abortion up to the states, though with certain limitations.

In 1992, the Supreme Court in Planned Parenthood v. Casey reaffirmed Roe’s finding of a constitutional right to an abortion, but abandoned Roe’s trimester framework in favor of a standard based on fetal viability. But now that even that framework is being swept aside. It is very likely states will soon be allowed to impose abortion restrictions at any point after contraception. If states choose to effectively eliminate the availability of medical care for abortions entirely, as Texas has done, without simultaneously compensating for the suffering this will cause, they cannot meaningfully lay claim to the term “pro-life.”

Without increasing the availability of sex education, contraception, family planning, emotional and vocational counseling, adoption alternatives, subsidized pre and post-natal care, affordable medical care, affordable child care, universal pre-school, and aid to women with dependent children, proponents of laws like SB 8 must acknowledge they are only pro-fetus. If “life” is to have meaning beyond birth -- if it is to include the life of the mother as well as the happiness, flourishing and purpose of mother and child – if it entails a life worth living -- then these laws cannot be described as pro-life. Nor, if Christians value Jesus’ actual teachings at the Sermon on the Mount, can they be described as reflecting Christian values. This is an issue on which Christians and humanists should agree.

In 2018, a Christian pastor, Dave Barnhart, posted the following to Facebook where it went on to be shared over 10,000 times. His message resonates today more than ever.

“The unborn" are a convenient group of people to advocate for. They never make demands of you; they are morally uncomplicated, unlike the incarcerated, addicted, or the chronically poor; they don't resent your condescension or complain that you are not politically correct; unlike widows, they don't ask you to question patriarchy; unlike orphans, they don't need money, education, or childcare; unlike aliens, they don't bring all that racial, cultural, and religious baggage that you dislike; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them, because they cease to be unborn. It's almost as if, by being born, they have died to you. You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus but actually dislike people who breathe. Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn.