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Texas Keeps Doing Its Best to Inflame the Abortion Issue

By their nature, True Believers tend to be impolitic. They have their eye on the prize, and prefer to take the shortest path forward, even if winning the battle puts them at risk of losing the war. There have been a couple of stories on that front out of Texas in the past few weeks.

First up, the Lone Star State has created "rules" for medically necessary abortions that are both pretty strict and pretty imprecise, and that carry harsh penalties for medical professionals if they are violated. The calculus here could not be clearer; the legislators writing the rules are trying to block as many abortions as is possible without getting their legislation struck down by state courts. And they seem to have triangulated fairly well (admittedly, not too tough to do, given the judges who sit in most Texas courts). A group of 20 women and 2 doctors filed a lawsuit, Zurawski v. Texas, arguing that the rules governing exceptions are too harsh and too arbitrary, and are keeping women (including 20 of the 22 plaintiffs) from getting medically necessary procedures. The nine Republicans on the Texas Supreme Court ruled unanimously to reject that argument, and declared that the rules governing exceptions are fine and dandy.

Second is a case that is just getting started, although this one is a federal and not a state case. To start, the Biden administration issued an executive order a couple of years ago implementing its interpretation of Title IX, the famous anti-gender-discrimination legislation passed in the 1970s. Specifically, the administration advised that Title IX applies to LGBTQ students, that it protects victims of sexual assault, and that students cannot be discriminated against on the basis of pregnancy-related conditions, including termination of a pregnancy.

There was already an ongoing case aimed at overturning the White House's Title IX guidance. That case was brought by the usual suspects, namely fundamentalist lawyer and crusader Jonathan Mitchell, former Trump White House senior adviser and budding fascist Stephen Miller and Texas AG Ken Paxton. And last week, the case was joined by a pair of professors from the University of Texas at Austin, John Hatfield (Business) and Daniel Bonevac (Philosophy). They hate every part of the new Title IX interpretation, especially the pregnancy/abortion stuff, and they are pretty fanatical about it. They have an openly stated policy that they will not hire teaching assistants who might obtain abortifacients, since doing so is a felony and they don't want to be in the position of harboring criminals. And they do not want to be required to excuse absences occasioned by travel for an abortion.

Exactly how these professors can possibly know who might, and might not, obtain abortifacient pills, or who might, or might not, travel to obtain an abortion is an excellent question. One possible way is to make "educated guesses." For example, they might assume that male TAs are less likely to get abortifacient pills than female TAs. That's hardly a certainty, though, and it's pretty hard to follow that line of thinking without engaging in pretty obvious gender discrimination. Similarly, they might assume that if a student appeared to be pregnant on Monday, missed class on Wednesday, and then appeared to not be pregnant on Friday, that an abortion was obtained. Also not a certainty, however, and to require students to "prove" they did not have an abortion (as opposed to, say, a miscarriage) would run afoul of quite a few laws, not the least of which is HIPAA.

That leads to a second, apparent, element of the professors' plan. While they might have their suppositions, they will need at least some evidence to take action. And the best (and possibly only) way to get evidence is from... other students. So, the plan would seem to be to turn the classroom into a surveillance state—a microcosm of what the state of Texas has become on the issue of abortion. The negative impact on students' educational experience should be obvious. Meanwhile, the professors apparently don't care that this potentially incentivizes dishonesty on the part of their students. Let's imagine that Joe Smith is right on the border between a passing and not passing grade, and without that pass, he doesn't graduate. It won't be too hard for him to figure out that a little intel about Susie Johnson will probably give him the "extra credit" he needs to get that diploma.

In short, these two men should be thrown out of the profession yesterday. We both flatter ourselves that our lectures are valuable to students, but we most certainly do not flatter ourselves that they are more valuable than proper medical treatment. It does not matter what the treatment is, or whether we agree with it. In fact, we don't even want to know the details. If the student feels they need to see a doctor during class time, then they are adults and that is their judgment. And that's before considering that the real goal here is not to protect the integrity of the educational process, but instead to impose these men's views almost exclusively on their female students.

Anyhow, the Mitchell/Miller/Paxton lawsuit now has a face (well, two faces). You get three guesses as to what judge will hear the case, and the first two guesses don't count. That's right, everyone's favorite anti-choice, only-judge-in-the-division jurist, Matthew Kacsmaryk. So, you already know what the initial ruling is going to be, and that it's surely to be declared, by fiat, to apply to all of the nation's universities. Then we'll see if that offends the sensibilities of the Fifth Circuit and/or the Supreme Court. Whatever happens, it will take until well after this year's elections to be resolved.

And that brings us back to politics. We continue to believe that this hot potato is going to be somewhere between "difficult" and "impossible" for Donald Trump to handle as he tries to reclaim the White House. To the extent that he has a stated position on abortion access, it's "leave it to the states." But there are three problems with that. First, he doesn't really believe that, and we suspect many moderate voters are going to figure that out. Second, there are some issues that aren't as simple as "states' rights" (like, say, mailing mifepristone from California to Texas). Third, every time a state does something fanatical, as Texas is wont to do (and Louisiana, and Alabama, and South Carolina, etc.), Trump has to own that. That is to say, if Texas is OK with, say, subjecting female college students to the third degree, or with women nearly dying because they can't abort a deceased and gangrenous fetus, then those are outcomes that are in line with the Trump policy.

Trump's difficulties in threading the needle here were on full display yesterday, when he delivered a "speech" to the Danbury Institute's Life & Liberty Forum. As you might guess, this is a one-issue group, and that one issue is a total ban on all abortions, regardless of circumstances, and regardless of whether they are surgical or medical. The reason we describe Trump's appearance as a "speech" is that it was pre-recorded. Maybe he didn't want to travel to Indianapolis (since he had to sit for his sentencing interview; see above). But, even so, he could easily have spoken live via video link. That he did not suggests strongly that his handlers wanted to be able to carefully control what was said, so that the former president did not make headlines by saying something too pro-choice, or too anti-choice.

What he did say in the pre-recorded address is this:

These are difficult times for our nation, and your work is so important. We can't afford to have anyone sit on the sidelines. Now is the time for us all to pull together and to stand up for our values and for our freedoms. And you just can't vote Democrat. They're against religion. They're against your religion in particular. You cannot vote for Democrats... I know what's happening. I know where you're coming from and where you're going. And I'll be with you, side by side.

This is what is known as "trying to have it both ways." On one hand, Trump pledges that he will "be with" this fanatically anti-choice group. On the other hand, the careful reader will note that he never used the word "abortion," or any other word or phrase adjacent to that. If we hadn't told you who the audience for the speech was, you could easily have guessed he was addressing the NRA, or AIPAC, or maybe even the NAACP.

According to numerous stories, the audience was... unimpressed by Trump's lack of conviction. They are not ever going to be Biden voters, but they could vote third-party or they could stay home on Election Day, particularly if they are persuaded that the Republicans need a reminder that the war is not yet over. Meanwhile, Trump is not going to be able to make it through the next 5 months with mealymouthed statements on abortion. There's the Republican Convention, there are the debates, there are going to be interviews with non-fawning media, etc. He's going to have to be more specific, otherwise he will risk alienating voters from both the middle AND the far-right end of the spectrum. (Z)

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