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The Wall Street Journal Gets the Texas Abortion Law Wrong

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Anti-abortion marchers rally at the Supreme Court during the 46th annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters) For conservatives, saving unborn children should be a matter of principle, not tactical politics.

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 5-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

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