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Texas Heartbeat Law and Abortion Arbitrage

In 2021, the passage of SB8, or the Texas Heartbeat Act, was a marked victory for the pro-life movement, attracting the rage of all the right people while advancing the pro-life, that is abortion abolition, movement beyond what even the Mississippi 15-week ban would do. The temporary stay at the Supreme Court represents could possibly be an indicator of how they will rule on Dobbs, but we should not hold our breath for a complete overturn of Roe v Wade with Roberts on the bench.

While Mississippi sets a line in the sand method to ending abortion, Texas employed a more tactical approach. Most abortions take place after the 6th week, so the Texas law sets a harsher standard. Texas allows for individuals to hold the abortion providers liable for performing murder, allowing for damages to be awarded via the court system.

The results speak for themselves: In September, the first month of the law taking effect, Texas saw 2197 abortions. For a state that averaged 4958 abortions per month for 2021 in the months prior, that represents a 55.69% drop from the mean. Only 2 abortions were performed outside of the Weeks 0-8 (which is the earliest categorization Texas reports). So while the media reports a 60% drop, it is important to keep in mind that in the leadup to the law taking effect, many women likely murdered their children, anticipating that the Molech temples would be shuttered in September. With only September’s data released publicly by the Texas Health & Human Services Commission, we should expect this dramatic decrease to be sustained for the remaining months of 2021. This is a major victory, but it should not be taken as complete.

There remain several underlying concerns which need be addressed and acknowledged. With majority of abortions coming after week 6 under normal circumstances, it is likely that of those 2197 murders, many of the mothers pulled forward their act whereas they might have delayed. In other words, they jumped the gun to sacrifice their children in light of the law. Another is that which the abortion activists themselves have claimed:

Collins Dictionary defines arbitrage as “a simultaneous purchase and sale in two separate financial markets in order to profit from a price difference existing between them.” In economics, this would be considered taking advantage of a market inefficiency. In the movie Dallas Buyers Club starring Matthew McConaughey, his character is actually performing arbitrage by purchasing AIDS medication from other countries that is being denied in America (thanks to Fauci and Big Pharma). He was taking advantage of the inefficient market, as it was profitable for him to transport drugs into America to provide to members of his Buyers Club, as he was not technically selling the drugs, but the membership.

So while most abortions were thwarted by the Texas law, we should consider the notion that some women are driving hundreds of miles to other states to take advantage of their relaxed abortion laws, or committing abortion arbitrage. Even worse is the idea that there could be bussing for such women to these other states. Perhaps such services or those who drive could be held accountable under the law, but it does represent a loophole which could be exploited.

This is all the more reason for states to replicate that which Texas has initiated and create a bloc of states thousands of miles long to prevent abortion arbitrage. Do not anticipate trigger laws going into effect so long as Roberts is the Chief Justice. Furthermore, we must step up the fight on Telehealth pill providers, which might become an increasing trend in Texas as 1471 of the abortions performed in September were categorized as medical (nonsurgical).

There seems to be a trend with conservative legislatures enacting laws that allow for plaintiffs to sue on behalf of the law versus the state. This decentralized enforcement mechanism allows for damages to be awarded as a judge determines suitable as opposed to defined fines which an adversary might weather. We also see this with Florida’s “Don’t Say Gay” bill, which passed the Florida senate this past week. Going forward, conservative legislators should continue this approach, as it will give additional teeth towards any legislation.

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