Sometimes it’s the little things that make you think. Many of you may have seen news accounts about a Texas woman, Brittany Bottone, who was given a ticket for driving herself in an HOV lane where two passengers were required. What does this have to do with abortion? Her defense is that she is 34 weeks pregnant; her fetus counts as a person under Texas law; and therefore she was in fact driving with two persons in the car, not one. She got the ticket anyway, and said “see ya in court.”
How can Texas abortion law be reconciled with its HOV lane rules? Why isn’t Ms. Bottone right? How will Ken Paxton defend both statutes? How can a “person” for abortion law purposes not be a “person” for purposes of the HOV lane?
The answer of course is easy. A fetus can be a “person” for purposes of abortion law, but not for purposes of HOV lane driving. Why? Because the underlying purposes and policies of each set of rules are so different. Context matters!
But holy cow. We’re in a textualist era. Started by Justice Scalia, he told us we’re supposed to look at the words which have fixed and objective meaning. Except they don’t. Texas wants to limit abortion, so a fetus is logically a “person” when you want to protect it. But HOV lane driving rules have an entirely different objective, so the same word can be defined and utilized differently in each place. Bingo…text is not immutable. Context and purpose matter too.
I’ve always thought that textualism was complete bunk, hokum designed to justify a result that conservative justices wanted to reach while enabling them to avoid responsibility for making a policy choice by saying “don’t blame me, blame that stupid statute” that Congress or some state legislature passed or a stupid rule that some administrative agency promulgated. Justice Roberts utilized that approach to the word “system” in his environmental opinion last week, West Virginia v. EPA, about which I’ll soon be writing. But the bunk and the hokum are easier to see when the case involves nothing more sinister than a traffic ticket for driving in the HOV lane without actually being in a High Occupancy Vehicle.
Pursue your defense, Ms. Bottone! Make Ken Paxton own up to his hypocrisy! Take the appeal too if you have to! You’ll lose the case and have to pay the ticket but you’ll unintentionally be performing a public service in the process.
Richard P. Swanson
Vice President, NYCLA
The views expressed here are my own, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.
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