How does the Texas Abortion Law Violate the Constitution?
The Texas Law imposes the religious beliefs of Christian Conservatives onto people who may be atheists, agnostics, or members of more tolerant churches. There are few biblical verses to support the presumption that a fetus has any rights. God says, "I knew you in the womb," about very significant characters such as King David, King Solomon, a few prophets, Jesus, and John the Baptist. However, there are no such declarations for less critical people. Until the turn of the 20th Century, doctors didn't file birth certificates until two months after birth because so many babies died before their second birthday. Even today, SIDS kills many newborns, and nobody charges the parents with these fatal childhood conditions.
Rowe vs. Wade recognized the privacy rights of the patient seeking an abortion and her doctor as private, protected under the same conditions as any other doctor/patient relationship. Before Rowe, women only got an abortion if they got raped, filed criminal charges, and filed police reports. In effect, Texas imposed an exceptional standard of privacy. Under the new Texas law, privacy again is tested. If upheld, the Texas law would nullify the 4th Amendment. Texas could easily extend this law to violate the privacy of political targets, LGBT people, and people of color. It could abolish doctor/patient privilege, attorney/client privilege, and confession rites.
The Texas law violates the right to Due Process and forces "self-incrimination." The woman must go to a doctor to confirm that she is pregnant and needs an abortion. Still, in doing so, she runs the risk that her doctor will discover the embryo is too well developed. Therefore the record of both the pregnancy and the mother's request for abortion get reported to Officials, making it illegal for the mother to get the abortion. At this point, the mother must endure the pain and discomfort of unwanted pregnancy, including morning sickness, backaches, preeclampsia, labor, and childbirth. Note that the mother has not committed a crime and may be the victim of a crime such as rape, sexual assault, pedophilia, or incest. She's denied due process as well.
Due process includes a trial by a jury of the defendant's peers. The Texas law makes no provision for any hearing as to whether or when the woman may or may not get an abortion before the fact. Instead, she is presumed to be a criminal accused of conspiring to murder a fetus. Even if the pregnancy would kill the mother, she could face trial if she survives. It seems like the rapist has more rights than the victim he impregnated.
And how many women come to their gynecologist with a lawyer in the room? Wealthy women can afford the airfare to a state where abortion is legal, at least for now. A woman who can't afford the trip can't afford a lawyer! The state won't provide a lawyer until she's facing criminal charges. The public defender generally has barely enough budget to negotiate a plea bargain. In effect, the 12-year-old girl gets forced to plead guilty to killing the fetus of the adult man who raped her, even if the father is her father, step-father, or "uncle" of mom's.
Let's talk about cruel and unusual punishment first. Too often, pro-life advocates imagine that unwanted pregnancies are the product of a woman who gave informed consent to an honorable man. An amusing little fantasy is a man who promised to marry the mother and support the child for 18-20 years.
An unwanted pregnancy often excludes at least one of these conditions; The girl didn't consent. The man deceived her. She found out he's abusive. After getting pregnant, the father refused to even pay for the abortion. He won't pay the child's living expenses for even 16 years. For example, he promised to marry her, had sex with her, then refused to marry her because she was pregnant, and he doesn't believe it was his.
The guy may be a total flake, with a good line. Perhaps all pregnant women should be DNA tested. We could match the baby's DNA against everyone who gets arrested, all men in government work, including soldiers, politicians, civil servants, and government contractors. Men who get STDs should also pay into a child support fund.
Consider this scenario. A poor black girl from a low-rent neighborhood gets molested by her mother's boyfriend, who gets her pregnant. Her period is late. She hasn't had one in 7 weeks. She goes to planned parenthood to get a free pregnancy test, which confirms that she is pregnant. When she tells her mother what happened, she gets ejected from home. Mom fears domestic abuse.
She's arrested put in jail, and remanded, because she asked a doctor how to abort the baby. The jail can force her to undergo nausea, vomiting, backaches, weight gain, chronic pain, and adverse health effects of pregnancy, with no medications to alleviate these symptoms. As she gets close to her date, she develops preeclampsia, and her blood pressure shoots to 220/150 for several hours every day. Finally, the jail decides to have the hospital do a cesarean section delivery, leaving the 12-year-old girl with a nasty scar and a painful recovery from surgery. To make matters worse, she gets nothing for the pain afterward. When the baby comes, the mother is expected to give up custody as part of a plea bargain to keep her prison time down to time served. The baby boy, not being white, is put into a kiddie farm with a dozen other kids and passed from one overcrowded foster home to another until they age out at age 16 when they are forced to drop out. He's trained by these institutions for either military or prison. Since the only politically acceptable goal would be military, this would be a violation of the
Keep in mind that even if she doesn't get arrested and held, the people demanding the use of her body for birthing future soldiers feel she should get no compensation. Being pregnant is a 24/7 job, with moments of sleep. Let's assume 20 hours/day 7 days/week for 40 weeks, or about 5600 hours, at $10/hour or about $56,000 would be a fair payment, and add in any healing time for C-sections or other surgeries. But Texas expects these moms to provide womb service for free, a violation of the
Pro-life forced-childbirth advocates scream, "What about the rights of the unborn!"
The good news and the bad news is that the unborn have no rights. If a baby is born at 11:59 PM on December 31st, he is a tax deduction, a dependent, and has a legal status for that year. The child born 2 minutes later won't be a deduction or a legal dependent for an entire year. Legally, some benefits and obligations don't kick in until after the child has been successfully delivered and the birth certificate is filed. Put simply, the unborn have never existed legally, let alone endowed with legal rights. Recent attempts at legislation defining life at an earlier point are not valid since the state doesn't grant the pregnant mother the same benefits that she would get once the child is out of the womb.
Perhaps someday, science will have the ability to transplant fetuses in their 6th-12th week into a mother who wants it. The conceiving mother would get an "abortion" and the foster mother would get a viable baby. That baby could be black, South Asian, East Asian, or the fetus of a drug addict, but the foster moms need to accept the pick of the draw. The fetus has to match BLOOD type, not subjective factors.
Until then, the best strategy is to PREVENT unwanted pregnancies from the beginning. This would include sex education. Not just test tube science of the reproductive process. It would include understanding each phase of the courtship process from eye contact to copulation and all intermediate steps, including alternatives such as manual or oral stimulation to climax. It should also include all forms of birth control from condoms and spermicide to the pill, IUD, and more permanent forms of sterilization. They should also cover both male and female chastity devices.
Abstinence should also be taught as an option, but this includes the lifestyle associated with abstinence including not bathing, not grooming, wearing plain ugly clothes, avoiding social events outside the abstinent community as well as not being alone with any member of the opposite sex at any time, especially in a room or car. Unfortunately, Christian Conservatives often expect teen children to be abstinent but then encourage them to be popular and successful with their non-abstinent peers. Sadly, the result is rape, sexual abuse, or manipulation that leads to unwanted pregnancies too often.
Consequences for Everybody
The most important part of the sex education class is learning how the unwanted pregnancy will most likely lead to a life of poverty and suffering. The father will have to pay half his after-tax income for 18-20 years, and the mother will have to live on subsistence level income while caring for the kids for 16-20 years.
The final lesson would be what happens to a baby that is "given up" into the foster care system. 70-80% of the babies put in foster care end up institutionalized and exploited as children, preparing them for a life of prostitution or worse crimes that will ultimately end in jails, institutions, or early death.
That's right! We need to completely shatter the fantasy that a poor unwed mother to be will be doing something noble by giving the baby up for adoption. For the lucky 5% of white healthy infants given up through private adoption agencies who charge parents $200,000 in legal fees and social worker fees, the mother will get nothing other than an update on the child's status and perhaps meeting the stranger who got womb-service for nine months and knows little or nothing about the mother. Foster children are often abused, exploited, neglected, molested, and frequently told that they are worthless dregs who were given up by a mother who didn't care.