The Grotesque Texas "Fetal Heartbeat" Law

Yes, it's a scarlet letter, but "A" may stand for any number of words beginning with that letter, including "abortion."  And to some of us, at least, abortion is far more of a sin than adultery, which even the most sanctimonious of us enjoy until discovered.  Let it stand as such, then.

It's apparent that reasonable discussion of abortion may no longer be possible (even its name is contentious) but let's endeavor to focus instead on this remarkable, and peculiar, law.  I think it's no exaggeration to describe it as grotesque regardless of where one stands on whether or not abortion should be prohibited.  Those who are convinced abortion is a dire sin or a criminal act akin to murder may not care whether it makes any sense from a legal perspective or whether it is or is not constitutional, true.  But any lawyer should care, and a lawyer I am and have been for a long time.  As a lawyer, I find it an ugly and distorted thing, as laws go.

It's unsurprising that it's been drafted, very deliberately, in an effort to avoid a constitutional challenge based on Roe v. Wade and successor cases.  But it's not artfully drafted in any sense.  It's clumsily written.  The evasion it attempts is ham-handed, even stupidly obvious.  It appears to be a cut-and-paste job.  It's as if the drafters took a law intended to make abortion a criminal offense, and then altered it in as heavy-handed a way as possible to make of it a civil law, granting a civil cause of action to private citizens.

Reading it, I was reminded of an old SCTV skit in which Rick Moranis and Dave Thomas were editing film using cleavers.  It's a Frankenstein's monster of a law, consisting of odds and ends from other laws stitched together.

It achieves its apparent purpose, to make a criminal law a civil cause of action,  by first granting standing to sue to people who suffer no direct harm or risk by virtue of the prohibited acts.  It stands standing on its head, in a manner of speaking; standing is not standing for purposes of this law.  Then, it grants "damages" in a minimum amount of $10,000 to a prevailing party who is not damaged by any of the prohibited acts in any sense otherwise recognized in the law.  Thus, damages are to be awarded to those who sustain no damages.  In addition, it provides for attorney's fees to be awarded to a successful plaintiff, but not to a successful defendant.  It makes any lawyer who defends a defendant liable for those attorney's fees.  It limits defenses which can be raised to the point where there is virtually no defense against an action.  Every effort is made, seemingly, to encourage suit and discourage any contest by making it very likely that a plaintiff will be successful.

It's clearly a parody or perversion of the laws that make a private citizen a "private attorney general" to protect the public from harm for, e.g., civil rights violations, environmental damages, lack of transparency in government, and other laws which contain similar "fee-shifting" provisions.  It's clearly an effort to impose a fine, or penalty or forfeiture in the guise of "damages."  It's brazenly, cynically, grotesque.  No effort is made to give it even the appearance of a just, equitable law.

Our Supreme Court has managed to duck the serious constitutional questions it acknowledges are presented by the law, thus assuring its enforcement until such time as it cannot be ignored by the Justices.  The wisdom of this evasion is questionable.  One would hope that if the Court decides to overrule Roe v. Wade it would do so openly rather than merely allowing its precedent to be so utterly ignored and over ridden.   

There's much more which can be said about the law and its encouragement of litigation, and of course about abortion generally, but I'm striving to limit this post to a merely legal analysis.  The fact that it is such a poorly drafted and peculiarly partial and unfair law may lead one to question it on other grounds as well, however.

 

There are Monsters, and then there are Monsters

Now and then, and in any case too often, I find myself drawn to discussions, of a sort, concerning Heidegger in a philosophy forum I frequent.  I don't think I can say I'm irresistibly drawn to such discussions, as I've managed to avoid some of them.  In this particular case someone asked for assistance in understanding a paragraph from Being and Time.  I found the paragraph so obscurely written, so crammed with what seemed to be jargon, that I succumbed to the unworthy desire to mock it.  This led one helpful poster to provide what I think must be called a translation...a surprising one to me as it seemed only vaguely related to the topic apparently being addressed in the paragraph in question.  Having helped me, though, the poster then scolded me, saying that I should learn the meaning of the vocabulary used by Heidegger if I wished to criticize him.

I personally think that a person should not have to learn the meaning of special words in order to read and understand a philosopher's work, or that of anyone else for that matter.   I think philosophical and most other points can be made without recourse to arcane language.  There should be no code one is required to discover (the "Heidegger Code"?) before the meaning is revealed.  Be that as it may, though, this post is inspired by a statement made by another poster after the word "Nazi" was brought up (I wasn't the first to do so).  That statement was to the effect that in assessing (with admiration, it apparently goes without saying)  Heidegger's philosophy we shouldn't get "bogged down" in the fact the man was an absolute monster.

This statement interests me, and not just because it acknowledges Heidegger was a monster.  Most of his apologists admit, as they must, that he was a member of the Nazi party.  Most know of the speeches he made in support of National Socialism and Hitler.  Most know, or should know, that he was a party member until the end of the war, that he never criticized the Nazis, or Hitler; that he never mentioned the Holocaust; that he never expressed regret for being a member of the party.  It's no longer possible to maintain he was not an anti-Semite after the publication of the Black Notebooks and his letters to his brother.  It's increasingly difficult for an apologist to maintain, reasonably, that Heidegger was not an enthusiastic Nazi, though some try to do so still.

So, instead, one hears from apologists that it doesn't matter.

I find the statement interesting because it speaks to the title of this post.  When we say someone is a monster, what do we mean?  Does someone who is a monster cease being a monster in some circumstances?  If Heidegger (or someone else considered a monster) was a monster, was he a monster when "doing" philosophy (or something else considered worthwhile)?  Does/should it matter if a monster does something worthwhile--does/should it make the person less of a monster?  Or, is a monster still a monster when doing something admirable, but that fact does not reduce the merit of what was done?  If that's the case, do we admire the monster or what the monster did?

The picture at the beginning of this post is an illustration used in the 1831 edition of Mary Shelly's Frankenstein.  It doesn't depict the monster as most of us know him.  Men, women, children can be monsters, but they need not be evidently a monster, a monster by appearance.

Do we, can we, say of someone "he/she is a monster, but a great philosopher/artist"?  When it comes to art, I don't think we usually distinguish between the creator and the created in any definite or significant sense when we understand that the act of creation was intended, and admire what was created, nor do I think it reasonable to do so.  We admire an artist who creates a great work of art because he/she creates it.  Nobody but the artist could so; the work of art is essentially a product of the artist as a person.  It isn't the work of just a part of the artist, i.e. the good part.

Nor do I think we make such a distinction in the case of a philosopher whose philosophy we admire.  If we admire Heidegger's philosophy, we admire Heidegger as well, for the same reason as we admire the artist.  Only Heidegger could write his philosophy, and Heidegger is a person.  But, we can't intelligibly say that we admire Heidegger the philosopher, not Heidegger the Nazi, as they're the same person.  Heidegger intended to be a Nazi and intended to write philosophy.

Say that's the case.  Can we nonetheless say the work of art/philosophical work can be considered apart from the artist/philosopher?  Can we say the fact Heidegger was a Nazi isn't important to his philosophy, or that we cannot or need not get "bogged down" in the fact he was a Nazi in reading or assessing his philosophy?  Well, I don't think we can deny or explain away the fact that if we admire Heidegger's work, we admire what the Nazi did and thought; we admire the Nazi's philosophy.  That Nazi sure was a hell of a philosopher.

Some have argued that Heidegger's philosophy encouraged or justified, or led to, Nazism.  What I've read of him indicates to me that he believed in the superiority and special destiny of the German language and people and did so for quasi-mystical, quasi-philosophical reasons, and this oddness is found in Nazism and other "isms" based in German romanticism.  But as to his ontology, his metaphysics, I will probably never know.  I'm not keen to learn, or discover, or decipher the Heidegger Code.