The Texas Abortion Law

KEVIN HARRIS: Dr. Craig, once again the Supreme Court has really gotten your attention. This one has to do with my home state. This is a debate that we’ve been watching for decades dealing with abortion. A new law in Texas that has been enacted. The Supreme Court’s reaction. We can guess, but tell us why this initially has so gotten your attention?

DR. CRAIG: The first thing is the Texas law itself. The law in Texas bans abortions once a fetal heartbeat is detected and so it would prohibit the vast majority of abortions that occur. The interesting thing about the law that we'll discuss later is that the law is not enforced by the government of Texas and therefore one cannot sue the Texas governor or the attorney general or any other government official with respect to the enforcement of this law because what the law simply does is give the right to private citizens to sue abortion doctors who administer abortions after six weeks after conception. So the intent of the legislation is to simply burden these abortion doctors with such onerous financial burdens that they will cease doing abortions after six weeks. Already this law which went into effect September 1 is having this effect. It is reducing the abortions drastically that were being performed in Texas. The really stunning thing now that has happened is that this was taken to the Supreme Court and the Supreme Court refused to put a stay on the Texas law. By a 5-4 decision the Court said, “We're going to just let this stand as it is until the case comes up for proper judicial review” but they refused to nullify the law or put a stay on the law. This has since been upheld once again by another Texas judge this time who has refused a request from our attorney general and the Department of Justice to stop the Supreme Court's ruling. So this is just a stunning development. A law has been passed in Texas which prohibits the vast majority of abortions in that state, and the Supreme Court and the Texas courts have refused to set aside this law until it can be properly taken to court and its constitutionality determined.

KEVIN HARRIS: It's significant that the six-week rule is also known as the heartbeat rule because it's usually at about six weeks that the pre-born human begins to have a heartbeat. Sometimes it's earlier. Boy, that just ought to get your attention. If you're a person who is pro-abortion and you're talking about the human heartbeat . . .

DR. CRAIG: Yes, rhetorically this is very powerful. I've seen in pro-life literature where they've tested slogans to see which ones are most effective with the public and the one that they found most effective in communicating their values to the public is “abortion stops a beating heart.” That was the one that people most resonated with. And so I think even though pro-life advocates and you and I know that there's nothing special about the fetal heartbeat in terms of transforming something that's non-human into something human (any point in the fetal development would be arbitrary to say before that point it's non-human and after that point it is human), nevertheless rhetorically at least, as you say, this is very powerful and serves to provide at least some sort of a cut-off point (even if an arbitrary one) for the vast majority of abortions of unborn children in Texas.

KEVIN HARRIS: I would dare say that this has probably been the most aggressive or significant rhetorical battle ever. I don't think that there's ever been a cultural battle that has depended this much on the rhetoric of how you phrase your position. We've gone through “anti-choice” rather than “pro-life,” you are “anti-abortion,” calling it “fetal material” and the “product of conception.”

DR. CRAIG: Or “it's my body, hands off my body.” All sorts of slogans and rhetorical ploys are employed in this debate on both sides. But the issue I think is one that cannot be underestimated in terms of its ethical significance because if we are dealing here with human life – with human beings – in the earliest stage of its development then abortion is literally a form of homicide, and there is mass homicide going on in our country if in fact these little ones in the womb are human beings. So, as I've often said, the abortion issue is not a religious issue. I want our listeners to understand this – it is not a religious question that we're being asked to deal with. It is a philosophico-scientific question. There are two questions that ought to guide your thinking about abortion. The first question is whether a human being has intrinsic moral value, and I think that most of us would recognize the intrinsic value of human beings. Human beings are not just things to be used, things that have extrinsic value. Rather, they have inherent moral worth and therefore inherent human rights. The second question is a scientific question – is the developing fetus a human being? It seems to me that the biomedical evidence makes that question indubitably yes. The developing fetus is not canine. It's not feline. It's not bovine. This is a human fetus. It is a biologically complete organism which is developing within the mother's uterus and which, if not aborted, will eventually grow to be a full adult member of the human species. So it follows then that the developing fetus has intrinsic moral worth and therefore is invested with fundamental human rights. And the Declaration of Independence which governs our country says that we hold these truths to be self-evident that all men are created equal and that they are endowed by their Creator with certain unalienable rights, among these are the right to life. The first and most fundamental right guaranteed by the Declaration is the right to life. So if you think that human beings are intrinsically valuable and if you think that the developing fetus is a human being then I think you should recognize that this developing human being has fundamental moral worth, intrinsic moral worth, and the fundamental right to life, and therefore abortion on demand is unethical. It is an abomination. It would only be in the case of some overriding moral justification that one would be permitted to commit homicide on this unborn human being, and the vast majority of abortions, of course, are performed without any sort of overriding moral justification.

KEVIN HARRIS: This is the strictest, most restricting abortion law that has occurred since Roe v. Wade. Many think that this could lead to the overturning of Roe v. Wade. Do you think that that is a possibility?

DR. CRAIG: Well, it's possible but I wouldn't get my hopes up too high because, as I say, the reason the Supreme Court refused to put a stay on this law is because of its bizarre unique legal nature. This is not a law enforced by the state of Texas. What it is is simply permission to private citizens, anybody, to sue abortion clinics and doctors who are performing abortions after six weeks after conception.

KEVIN HARRIS: Even Uber drivers who would drive a woman to an abortion clinic can be sued. So it's very far-reaching.

DR. CRAIG: And as a result it puts the financial pinch on these abortion doctors. The women who seek abortions are not liable. They are viewed as victims of this abominable practice. It is the persons who carry it out, who facilitate it, that would be targeted by these lawsuits. And so abortion clinics and abortion rights folks are just catatonic over this bill. For example, I read a statement by Amy Miller, who's the head of an abortion provider with four clinics in Texas. She says that this law will have a chilling effect upon Texas abortion clinics, and from the news reports I've seen, the moment this law was adopted on September 1 the very next day the abortion numbers dropped off a cliff. So the law is working. It is either saving lives or possibly women who really want abortions are going to other states, but it is doing the thing for which it was legislated, namely it is curtailing the abortions in Texas. But whether the Court will overturn Roe v. Wade is anybody's guess. The difficulty there is that Roe v. Wade has been on the books since 1973. It's been ratified again and again by the liberal Supreme Court. So there's enormous judicial precedence in its favor. So the current Court would have to have the backbone and the courage to say Roe v. Wade was a bad decision by the Court and it should be overturned. It creates a constitutional right to abortion that does not exist in the Constitution and therefore this issue needs to be remanded to the states. Whether or not the Court will do that is anybody's guess. I don't think John Roberts is going to do that. Roberts has turned out to be a real disappointment to the pro-life movement. He voted with the three liberal justices to put a stay on this Texas abortion law. It was the other five justices including three appointees by President Trump that said that the abortion law in Texas can be allowed to stand until such time as the actual issue is brought before the court to decide. And when that is done the question will be: can they have the courage to overturn what was a really bad decision. The Supreme Court has done so in the past. It has reversed itself. The most famous, of course, would be the Dred Scott decision which dehumanized American Negroes. It said that black people are not fully human, and the Court after many decades finally overturned that Supreme Court decision to accord full humanity to racial minorities. This decision that dehumanizes the unborn children is just as heinous, just as dehumanizing, as Dred Scott was. So it is high time that it is overturned, and I can only hope and pray that the conservative justices will have the courage to do that.

KEVIN HARRIS: Here's what the Governor of Texas, Governor Abbott, said, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion.” Abbott said this in a bill signing ceremony captured on video. “The legislature worked together on a bipartisan basis to pass a bill that I'm about to sign that ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”

DR. CRAIG: I really appreciate Governor Abbott's candor and compassion in that statement. His expression, “Our creator endowed us with the right to life” is of course an echo of the Declaration of Independence that I quoted earlier where the most fundamental of our unalienable rights is the right to life. And yet, as he says, millions of unborn children lose this right every year. They are incinerated, burned to death by chemicals, or they are cut into pieces while alive by surgical instruments and then vacuumed out of the womb even right up to the ninth month of pregnancy. This is an inhuman procedure and this holocaust against the unborn needs to be stopped.

KEVIN HARRIS: In conclusion today, well, first of all – the Supreme Court has really kind of been in your favor lately.

DR. CRAIG: Not in my favor! I think it's in the favor of these unborn children who are so defenseless and who have no ability to speak for themselves and who depend upon us to speak out for them.

KEVIN HARRIS: Absolutely.

DR. CRAIG: It is remarkable that the current Court is willing to do this. I mean, if it had been Ginsburg on that Court instead of Barrett, or if it had been Kennedy on the Court instead of Kavanaugh, it wouldn't have gone this way – this 5-4 decision. Even with Roberts joining the liberals, it is remarkable and may herald a new era in which the Court, I think, gets back to a more strict reading of the Constitution rather than a loose reading in which they read all sorts of things into it that weren't intended by the founders.

KEVIN HARRIS: Sure. And what I'm trying to say is that you've been applauding them lately in the last few years in their direction as far as the Supreme Court in the direction of religious liberty, freedom of speech, and some cases like that. So this continues that trend apparently. The conservative majority has been a good thing when it comes to policies and issues that we're concerned about.

DR. CRAIG: I think if you agree with me that human beings have intrinsic moral worth and that the developing fetus is a human being then you can rejoice not only in the Texas law but in this Supreme Court decision. As I say, these abortion rights advocates are going crazy over this. I saw one abortion rights provider say the new law would immediately and catastrophically reduce abortion access in Texas and most likely force many abortion clinics ultimately to close. And my response was: Hallelujah! That is exactly what I want to see happen.^[1]