Jurisprudence

Republicans’ New Stance on COVID Contradicts Everything They’ve Said About Abortion

A Trump judge and a GOP governor push an incoherent theory of freedom that coddles COVID deniers and torments abortion patients.

Greg Abbott speaks in front of the Texas states seal.
Texas Gov. Greg Abbott on July 10 in Austin, Texas. Tamir Kalifa/Getty Images

The irony is difficult to ignore. Greg Abbott, the Texas governor who is madly litigating various lawsuits to prohibit local governments and state agencies from mandating vaccines or masks, tested positive this week for COVID. In one of the nation’s hottest COVID hot spots—one man waited days to be treated for his gunshot wound because Texas hospitals are full—Abbott is currently receiving VIP monoclonal antibody treatment while the state runs out of ICU beds. Those who opted to receive the news of the governor’s diagnosis—he’d been mingling unmasked at a fundraiser the night before—with a snide “thoughts and prayers” tweet might well be forgiven for the unseemly schadenfreude. (The Centers for Disease Control and Prevention recommend that even fully vaccinated people like Abbott wear masks indoors, guidance he immediately rejected.)

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But beyond the jokes about karma, what Abbott has put into motion in Texas, where COVID has killed 54,556 people (and counting), beggars ethical belief. His attorneys are pressing lawsuits that would preclude local school districts from imposing their own mask mandates, even for students too young to be vaccinated. His administration has been sued in federal court by disability rights groups representing students who cannot attend their schools because, without local mask mandates, they may die. Local school boards are facing a tsunami of impossible-to-reconcile legal rulings from various courts, as jurisdictions try to out-clever the clever governor by imposing mask mandates as part of their power to establish dress codes. In addition to outlawing mask and vaccine requirements on every level of Texas’ government, Abbott has threatened to revoke the liquor licenses of private businesses that demand proof of vaccination from customers. This may look at first like trolling as an end in itself, but the object here is to foster and foment confusion over well-established medical science, while dressing it up with claims of individual liberty.

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What makes the claims about the urgent and existential freedom to be unmasked and unvaccinated doubly laughable is not just that Abbott is playing with the lives of Texas children, but also that his administration is simultaneously making exactly the opposite arguments in abortion cases. On Wednesday evening, at his administration’s urging, the 5th U.S. Circuit Court of Appeals upheld Texas’ severe restrictions on the standard abortion method used after 15 weeks of pregnancy—dilation and evacuation. The measure requires abortion providers to ensure “fetal demise” by injecting the fetus with digoxin before terminating the pregnancy. As one dissenting judge noted, this injection is “risky, painful, invasive, and untested.” For any women who do not want to undergo this excruciating, experimental procedure, the law will amount to a ban on abortion after 15 weeks. Yet the 5th Circuit’s opinion, which is theoretically rooted in Chief Justice John Roberts’ deliberately incomprehensible opinion in an abortion case last year, upheld the ban, finding that Texas plaintiffs failed to show the measure “imposes an undue burden on a large fraction of women in the relevant circumstances.”

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Gone now is any solicitude for Texans and their liberty, for the right to be free from busybody legislators and their dubious claims about science. Indeed, in his concurrence in the abortion case, Judge James Ho—one of the Trump-appointed judges most feverishly devoted to the principle that “owning the libs” is a stand-alone constitutional value—wrote gratuitously about the ambiguities and impossibilities of judicial comprehension of scientific fact. “ ‘Follow the science,’ it’s often said,” Ho lectured. “And rightly so. But what do we do when scientists disagree? The Supreme Court’s abortion precedents are unequivocal: Judges have no business deciding which scientists are right and which ones are wrong.” (This claim is just plain wrong: In cases ranging from abortion to capital punishment to environmental regulation, the Supreme Court has, in fact, declared that judges may identify and follow a scientific consensus despite dissent from a minority of scientists.)

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Ho then moved on to discuss Ignác Semmelweis, who discovered the importance of handwashing to prevent infection, and could not stop himself from joining the Tucker Carlson cancel chorus by noting that “Semmelweis’s discovery saved lives. But instead of being praised or even accepted, he was ridiculed as an ‘agitator.’ … More senior colleagues expressed ‘alarm [at] the increasing influence of younger physicians’ like Semmelweis. So, to use modern parlance, they cancelled him.”

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The thrust of Ho’s tour of scientific history is that establishment scientists are hacks subject to ego and peer pressure and we shouldn’t blindly follow their irrefutable conclusions about when life begins. In one passage obviously directed at COVID restrictions, Ho asserted that scientists are “susceptible to peer pressure, careerism, ambition, and fear of cancel culture,” subject to “intimidation and politicization within the scientific community.” He speculated that this “politicization” led to the gagging of scientists who endorsed the lab leak theory of COVID’s origin early on in the pandemic. And, for good measure, he mused further that politics may be driving doctors to push children into unnecessary gender transition because they are terribly “afraid of not being seen as affirming or being supportive of these young people.” (Again, this is a case about abortion.)

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“Someday,” Ho concluded, “scientists may look back on today’s abortion debates as shocking and barbaric—just as we look back in disbelief at those who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection.”

Has Ho even considered the possibility that scientists may someday look back on Texas’ laws banning mask and vaccine mandates as “shocking and barbaric”? It’s a safe bet he has not. In one footnote, Ho approvingly cites an article in the conservative City Journal by John Tierney, a critic of “COVID hysteria.” Tierney’s piece asserted that “fearmongering” journalists, scientists, and politicians consistently overstated the danger of the coronavirus. And Tierney scorned face masks—which, he claimed, failed to stop the spread of the virus and served “solely to assuage the neurotic fears of adults.”

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Ho’s meandering anti-science concurrence thus pairs perfectly with Abbott’s various tweets, speeches, and executive orders prohibiting any state or local official in Texas from implementing the most modest of COVID precautions. To both men, the beating heart of “freedom” is the freedom to make your own decisions, unbounded by the strictures of science, public health, or standards of medical care. Both Abbott and Ho push a theory of “liberty” untethered from knowledge or civic responsibility, a liberty that must be valued over life and health itself—unless you are a pregnant woman, or a school-aged child unable to attend class for fear of death, or a business trying to keep your employees safe.

This worldview, in a slightly milder form, has also taken hold at the Supreme Court. In case after case, the conservative majority has hobbled public COVID restrictions in the name of individual religious liberty. This approach is always couched in language about scientific uncertainty and overcautious public health scolds who seek to curb freedom. Meanwhile, the justices have taken up a direct assault on Roe v. Wade that seeks to abolish the constitutional right to abortion. This case was teed up by none other than James Ho in an opinion that was deeply concerned about “pain to the unborn baby” but completely unbothered by state interference in a woman’s reproductive autonomy.

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It’s easy to see it as mere trolling for its own sake: Ho taking his potshots at science and doctors, Abbott benefiting from his special status to access health care Texans cannot get, as he downplays the virus as less urgent than “freedom.” But trolling has a way of muddying the waters of public discourse, and in Texas, people who stopped believing in the court system last week are being urged to give up on science today. These self-styled heroes of liberty seek to persuade Texans that true freedom encompasses the right to refuse an FDA-authorized vaccine, but not an experimental digoxin injection. In genuine crises of life and death, rejecting some science for some, and imposing junk science on others, is the freest freedom of all.

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