The Wall Street Journal editorial board has spoken out against a new and contentious anti-abortion law that was just passed in Texas and has thus far been upheld by the Supreme Court.
The WSJ editorial board is well-known not only as a conservative publication but also as a thought leader from whom many others take their cues, which makes this opinion more astounding given how it contradicts the thinking of many Republicans.
The essay, titled Texas’ Abortion Law Blunder, mocks the law with the line “Cue the hysterics about the end of abortion rights,” labels the law a “misfire” even for abortion opponents, and makes clear that neither side in the abortion/choice/life issue should be certain the law will be upheld.
It then explains the legal challenges raised by this law and how the underlying reasoning can serve as a catastrophic precedent that can be applied to an infinite number of contentious subjects, not just in red states:
For starters, the Texas statute clearly violates the Court’s Roe v. Wade (1973) and Casey(1992) precedents by making abortion illegal during the first trimester without exceptions for rape or incest—and it does so in a slippery way to duck federal judicial review. Most laws delegate enforcement to public officials. This one delegates exclusive enforcement to private citizens, who are authorized to sue anyone who “aids or abets” an abortion after six weeks. Citizens who prevail in their civil lawsuits are entitled to at least $10,000 per abortion along with legal costs.
The law sets an awful precedent that conservatives should hate. Could California allow private citizens to sue individuals for hate speech? Or New York deputize private lawsuits against gun owners? Texas argues that abortion providers don’t have standing to challenge the law because the state isn’t enforcing it and neither at this point is any private citizen. Thus there is no case or controversy, which is what courts are supposed to settle. This is technically correct and it is why the five Justices declined to enjoin the law.
The WSJ editorial board then points the finger at the new law’s politics and at Texas Attorney General Ken Paxton, jokingly inquiring whether he is a “progressive plant.” The essay clarifies:
Democrats are already having a field day with the Texas law. “This law is so extreme it does not even allow for exceptions in the case of rape or incest,” President Biden said in a statement. Look for Democrats to raise the political pressure even higher on the Supreme Court this coming term when it hears a Mississippi case that bans abortion after 15 weeks. The Justices could uphold the Mississippi law by narrowing Casey’s “undue burden” standard. But the left will flog the Texas law and proclaim that upholding the Mississippi law is a fast track to overturning Roe.
Sometimes we wonder if Texas Attorney General Ken Paxton is a progressive plant. His ill-conceived legal attack against ObamaCare backfired on Republicans in last year’s election and lost at the Supreme Court. Now he and his Texas mates are leading with their chins on abortion. How about thinking first?
Read the full essay at the WSJ (paywall.)
Photo by Sergio Flores For The Washington Post via Getty Images