Sometimes, the Supreme Court does the most when it does nothing. Last night, the justices denied an emergency petition by abortion providers in Texas seeking to block S.B. 8, a law banning pregnancy terminations after roughly six weeks’ gestation. A 5–4 majority of the justices argued that they had no power to stop the law from going into effect, since none of the citizens who are now empowered under the law to sue abortion clinics for providing the procedure has yet attempted to do so. Legal challenges likely lie ahead. But abortion opponents see this as a victory, however temporary. For now, at least, abortion clinics in Texas are largely suspending their work and abiding by the ban.
John Seago, the legislative director of Texas Right to Life, shepherded and supported the passage of this law. “This is a phenomenal victory and the most significant accomplishment for the Texas pro-life movement since Roe,” he told me. Just five years ago, his group and its allies faced a major legal defeat in Whole Woman’s Health v. Hellerstedt, in which the Supreme Court overturned legislation restricting abortion procedures in Texas. Today, Seago and his allies feel much more optimistic that they can end legal abortion, and not just with S.B. 8. This fall, the justices are slated to consider Mississippi’s 15-week abortion ban and potentially reevaluate the constitutional right to abortion laid out in the landmark 1973 case Roe v. Wade.
If Seago and his allies get their way, abortion would be completely illegal in the United States. But would they be ready, if that were to become reality? I spoke with Seago yesterday afternoon. Our conversation has been condensed and lightly edited for clarity.
Emma Green: I’m curious why your legal approach here was not a full-frontal attack on Roe, but rather to create a private right of action for citizens so they can sue abortion providers. What was the motivation behind that approach?
John Seago: There are two main motivations. The first one is lawless district attorneys that the pro-life movement has dealt with for years. In October, district attorneys from around the country publicly signed a letter saying they will not enforce pro-life laws. They said that even if Roe v. Wade is overturned, they are not going to use resources holding the abortion industry to account. That shows that the best way to get a pro-life policy into effect is not by imposing criminal penalties, but civil liability.
The second is that the pro-life movement is extremely frustrated with activist judges at the district level who are not doing their job to adjudicate conflicts between parties, but who in fact go out of their way to score ideological points—blocking pro-life laws because they think they violate the Constitution or pose undue burdens.
Green: How much of your strategy is about optics? Instead of passing legislation that would send doctors or women seeking abortions to jail, these questions get played out in civil court.
Seago: There’s a question of morality: Is it ethical to penalize women seeking abortions in Texas? We have categorically argued that women need to be treated differently than abortionists. Even with civil liability, we say that women cannot be the defendants. That’s not the goal.
Green: All things being equal, do you think that doctors who provide abortions should be put in jail?
Seago: Yes. Absolutely. There is an unethical procedure at the heart of this debate. Elective abortion is the epitome of an injustice. It is a larger, stronger group using violent force to take the life of a smaller, weaker party. You don’t have to have a religious background or be motivated by faith to realize that’s not the kind of society we want to live in. I’ll look forward to the day when our laws reflect that we have moral obligations to the most vulnerable populations around us.
Green: This law bans abortion after roughly six weeks’ gestation, pegged to being able to detect a heartbeat on an ultrasound. That’s really early into a pregnancy. This is essentially a total ban on abortion. So why start with the heartbeat? Why not just totally ban abortion?
Seago: You have to think about the compelling state interest. How can we articulate that as the state of Texas? The heartbeat is a morally significant biological moment where we can detect whether someone is alive or not. If you see someone [passed out] on the side of your jogging trail, you go and check for the signs of life—a heartbeat. That was very appealing to a lot of pro-life Texans. That was appealing to a lot of elected officials.
You’re right that it is more ethically consistent to ban all abortions and say, “At the moment of sperm-egg fusion, you have an independent, individual human being who is unlike anyone else—no longer an organ, but an organism.” However, whenever we look at legislation, you have to have a majority. You have to have the votes. The heartbeat ban was a really popular piece of legislation. It was easy to explain to even some individuals who identified as pro-choice.
Green: I’m curious about the state of play in Texas. Just five years ago, Hellerstedt was a major defeat for pro-lifers in Texas. Do you feel more optimistic now than you did then that it will be possible to permanently ban abortion in Texas?
Seago: Absolutely. Yes. There’s been a ton of momentum for the pro-life movement since then. Hellerstedt was an extremely disappointing decision from a legal standpoint. Abortion jurisprudence is built on some fundamental legal and scientific and moral errors. What we want to do as an organization is pass aggressive legislation that highlights those errors. Things like the ridiculous viability standard—the idea that, ethically, it’s okay to take a life if it can’t survive on its own, but once it can survive on its own, all of a sudden it is unethical to take that life. That violates common ethical reasoning.
We want to pass legislation to show the Supreme Court that they need to tear down and rebuild the legal foundation they have relied upon when it comes to abortion legislation. We’re invested in that, but that’s really a different project than the heartbeat act.
Green: I’m going to ask the question that all of your opponents have on their mind. All of the women in abusive relationships, or who are straining to take care of the kids they have, or who can’t afford to buy food, or whose babies are diagnosed with severe disabilities or genetic abnormalities—this law in Texas is potentially going to change the course of their lives. Aren’t you worried about hurting them?
Seago: Yes, we are. At the same time, as we passed S.B. 8, we invested $100 million in the Alternatives to Abortion program, and we increased funding to the Healthy Texas Women program. We’re concerned about not just saying no to abortion but supporting women who are facing unexpected pregnancies or other difficult circumstances. That needs to be the pro-life vision for the state of Texas. Part of our core agenda every session is increasing funding to these programs that support women and their families.
We are the organization that drags Republicans, sometimes kicking and screaming, into investing more money into social services for pregnant women. However, we face a major injustice: more than 50,000 elective abortions and the intentional killing of innocent human life. That’s not good for mothers.
Green: I want to push you on that, because, as an environment for pregnant women, Texas is pretty harsh. For example: It’s one of roughly a dozen states across the country that didn’t expand Medicaid under the Affordable Care Act. So poor women have less access to insurance coverage and health care. Critics would say that you shouldn’t prioritize a heartbeat bill; you should prioritize improving Medicaid access so that poor women can see a way to potentially keep a pregnancy. Are you going to advocate that Texas expands Medicaid access?
Seago: Medicaid expansion is one issue. But we have to be mindful of our political atmosphere and what is possible. We will continue to advocate for policies that are good for pregnant women and open up access to social and medical services. There’s much more we can do as far as serving pregnant women. We’re open to those things, but we have to realize that we don’t drive the legislature. Just because we’re a pro-life organization doesn’t mean we get everything we ask for.
Green: That’s really interesting, because obviously the pro-life movement is strongly associated with the Republican Party across the country. Do you ever feel frustrated with the Republican Party—that sometimes it says it’s pro-life, but it doesn’t necessarily put its money and its policy where its mouth is, in terms of doing everything it can to make sure that pregnant women are able to thrive?
Seago: Absolutely. The Republican Party does not have 100 percent of my support. There are areas where I think their policies and priorities are hurtful to human flourishing, and actually unethical.
The problem is that when I compare the parties, I see that while the Democratic Party may be better on disability rights and access to health care, ultimately they are turning a blind eye to significant, glaring injustices. At the end of the day, I’m working with the Republican Party because they are the only party at this moment that is willing to boldly stand up against the gross injustice of elective abortion.
Green: For the past 48 years, the pro-life movement has been fighting Roe and trying to put an end to legal abortion in the United States. In some ways, it seems like that goal is closer now than ever. That potentially means the world we’re going to be living in will be very different—including hundreds of thousands more babies and children running around. Is the pro-life movement financially and politically ready to support that world? If you got what you wanted, would you be ready?
Seago: To be honest, it would require a higher level of commitment and investment that we have not seen. However, the infrastructure is already there. The commitment is already there. Think of the pregnancy-center movement: small nonprofits around the state that are seeking to support women in making sure they have a safe home and access to food or can apply for a job or put a résumé together. Pregnancy-center directors are seeing an influx of women come through their doors. These people who are sitting down with pregnant women and trying to help them—that’s really where the heart of the pro-life movement is. That is the kind of self-sacrifice and compassion that it’s going to take to live in an abortion-free state.