As attorney general of Texas, I recently filed an appeal with the 5th U.S. Circuit Court of Appeals defending Senate Bill 8, our state law banning live dismemberment abortions. A district court struck down the law, which passed the Texas Legislature with an overwhelming bipartisan majority and the backing of numerous medical professionals.
The district court’s tortured legal reasoning reveals a deeper incoherence in the 45-year-old so-called constitutional right to an abortion.
S.B. 8 banned the barbaric practice of killing the unborn by dismemberment in the womb. It takes place in the second trimester and onwards, at which point the baby is easily recognizable as a small human, sporting fingers, toes, arms, legs and developed facial features. The abortionist gropes around inside the uterus using forceps to — literally — tear the living unborn baby limb from limb. It is as slow and cruel a death as it sounds. It has no place in a civilized society.
On the Texas Senate floor, Democrat Sen. Eddie Lucio Jr. told his colleagues that he had seen dismemberment on film and considered it “horrific, to say the least,” adding that he “shuddered to think that this could have happened to any one of us, had our mothers decided to have an abortion.” Lucio voted to ban dismemberment abortion, but a single U.S. district court judge voided his vote — along with those of the vast majority of his fellow duly elected representatives.
Western society has a long history of debating the most humane way to execute criminals guilty of even the most unspeakable crimes. Whatever the disagreement on the appropriateness of the death penalty in general, reasonable people agree that no crime, however heinous, deprives a criminal of his dignity as a human being. We have a solemn duty to protect the sanctity of human life, no matter the offense.
At least as solemn, then, is our duty to foster respect for innocent, unborn human babies that lie defenseless in their mother’s womb. As long as the so-called right to abortion is mandated, we should at least forbid their needless torture and disfigurement in the process.
S.B. 8 would ensure that the live dismemberment of an unborn child never takes place in Texas again, save for true medical emergencies. The district court claimed that providing this basic dignity to the unborn constituted an insuperable obstacle for women in search of an abortion. That ruling ignored voluminous evidence demonstrating the numerous alternative procedures the abortion clinics suing Texas use regularly. In the past five years, there has not been a single reported complication from any of those alternatives.
The district judge’s decision also ignored binding precedent from the U.S. Supreme Court. The 1992 Supreme Court case Planned Parenthood v. Casey recognizes the state’s right to regulate abortion “throughout pregnancy,” barring an “undue burden” on abortion access. Again, given the many other available options, it’s hard to see what burden S.B. 8 places on that access.
In 2007, Gonzales v. Carhart reaffirmed the legitimacy of banning brutal abortion procedures where safe alternatives exist. That’s exactly what S.B. 8 does. It’s a straightforward application of the Supreme Court’s rulings in Casey and Gonzales.
S.B. 8 falls squarely within the legal framework established by the Supreme Court, and I am confident it will be vindicated by higher courts — maybe even by the Supreme Court.
However, the lower court’s decision is not just legally false. This case also exposes the irresolvable tension between the invented right to abortion and the dignity of human life. In 1973, Roe v. Wade essentially mandated abortion on demand; later cases like Casey and Gonzales moderated Roe in significant ways, allowing for laws like S.B. 8. Undoubtedly, this is a good thing — it allows us to stamp out procedures that are particularly cruel and inhumane (like live dismemberment).
Nevertheless, repeated court battles over the authority of states to regulate abortion have a certain logical ridiculousness at their heart. In an indirect way, they recognize abortion’s gravity while ultimately ignoring the underlying truth: A child in the womb is a human being.
S.B. 8 has moral and legal justifications enough to stand on its own, and I am confident that it will. But in the last analysis, abortion is a degradation of the value of human life, subjecting something inherently precious to the arbitrary will of another person. It is fundamentally inconsistent with the equal dignity of all people, a principle that President Abraham Lincoln called the “sheet anchor” of American government.
America is ordered to the preservation of our self-evident, God-given rights — life, liberty and the pursuit of happiness. Abortion deprives human beings of the most fundamental right, the one without which all others are meaningless.
Fortunately, America also has a proud tradition of bringing its laws into harmony with this foundational truth about human nature. If past is prologue, our laws and courts will soon recognize the rights of the unborn.
Kenneth Paxton is the attorney general for the state of Texas.