https://www.nationalreview.com/2021/09/the-wall-street-journal-gets-the-texas-abortion-law-wrong/
The Wall Street Journal’s editors have posted an uncharacteristically weak editorial on the Supreme Court’s refusal to block Texas’s fetal-heartbeat law from going into effect. The Journal’s editors concede that the five-justice majority correctly decided that the plaintiff abortion providers did not have a case for sundry procedural reasons. Nevertheless, they join the chorus of center-right strategists who maintain that, however well-meaning, the curb on abortions is a “blunder” that will ultimately lose on the merits while “hand[ing] Democrats a political grenade to hurt the anti-abortion cause.”
I’d respectfully suggest that the editors are overthinking it. Their analysis is wide of the mark.
To begin with, the Journal’s editors point out that the Texas law would render illegal pre-viability elective abortions that are permitted by Roe v. Wade (1973) and Casey v. Planned Parenthood (1992). As the editorial acknowledges, however, the High Court already has on its docket for the term that begins a month from now the Dobbs case, involving a Mississippi curb on pre-viability elective abortions after 15 weeks. Given that the justices will necessarily revisit Roe—as revised by Casey—in Dobbs, the fact that the Texas law forbids that which Roe/Casey permits does not necessarily mean the Texas law is infirm.
The Journal is correct that the Texas law does not expressly specify exemptions to terminate pregnancies attributable to rape and incest. It should be noted, however, that rape and incest are not relevant factors in at least 98 percent of abortions. (The Guttmacher Institute has estimated that rape accounts for about 1 percent of abortions, and incest about 0.5 percent.) The act does bar a male who impregnated the abortion patient through an act of rape or incest from bringing a lawsuit under the statute, but it is true that no one else is subject to this bar. The law also provides an exemption if a physician performs an abortion under the belief that a medical emergency exists, but, though it defines a number of pertinent terms, the statute fails to define “medical emergency.” As I understand it, this concept is broadly construed under Texas law, but it is unlikely to include non-life-threatening physical injuries or mental anguish attributable to a rape/incest pregnancy.
All that said, the Journal’s emphasis on the absence of a rape and incest exemption is indicative of the editors’ prioritization of the political implications of the law over its purpose to protect unborn life.