A Letter from Austin #3: Your Bodies, Our Choices
Texas’s New Anti-Abortion Law Hits a Federal Roadblock
The biggest news in Texas this week is federal judge Robert Pitman’s stay of Texas’s new anti-abortion bill, SB 8, called either the “Heartbeat Act” or the “Rapist Reproductive Rights Bill,” depending on one’s perspective.
Ruling in favor of the federal government’s motion to enjoin enforcement of the law in a case styled United States of America v. The State of Texas, Pitman didn’t beat around the bush. He criticized the GOP-dominated Legislature for manufacturing a clumsy statutory disguise for the state’s war on abortion, characterizing the law as an attempted “end run around the Constitution.” Instead of simply banning abortions after six weeks — more precisely, after the first sign of cardiac activity, which usually occurs at around six weeks — a move that would clearly violate settled constitutional precedent, the Legislature instead created a private cause of action for individuals, who are now authorized to sue people or organizations that perform abortions or assist, or intend to assist, women who seek them.
With the possible exception of gun rights, abortion is the single most divisive issue in America today, one that involves considerations of biology, ethics, religion, and political advantage. Advocates on both sides of the divide make compelling arguments, and neither party seems all that happy about the jerry-rigged compromise represented by the U.S. Supreme Court’s decision in Roe v. Wade, a beat-up old pickup truck of a decision, ungainly but workable, that is now almost fifty years old. Roe was predicated at least in part on the notion that a human fetus reaches viability at around six months from conception. Abortion opponents submit that medical advances have made viability occur much earlier, thus making Roe obsolete. Regardless of one’s position on the subject, SB 8 is a breathtakingly bad and hypocritical piece of legislation.
For example, despite the Texas GOP’s long and often-repeated commitment to tort reform and the reduction of litigation, it has now empowered individuals with no relationship with either a provider or a patient to sue for “damages” of at least $10,000 and costs if the individual believes the provider or a third party has assisted or intended to assist a woman to have an abortion after cardiac activity has begun. The $10,000 has aptly been described as a bounty, since there it is difficult to think of a legally cognizable “damage” done to an individual bringing suit where that individual has no relationship with either the provider or the pregnant woman. In effect, Texas is attempting to create a situation like the one that prevailed for years in communist East Germany, where private citizens did the state’s dirty work for it, spying and ratting on their neighbors.
Aside from its questionable aims, the law is simply sloppy and incomplete on its face. It contains no guidance regarding the meaning of “assistance” (the statute calls it “aiding and abetting,” using criminal terminology despite the fact that the statute is civil in nature), thus creating a situation where even an Uber driver who takes a woman to an abortion clinic, whether he knows the purpose of her trip or not, could be sued for upwards of $10,000 and costs. This sort of confusion — the “leave it to the courts to figure it out” attitude — is a hallmark of bad lawmaking.
Additional defects: Despite the fact that some women don’t even realize they’re pregnant until after six weeks, the law makes no exceptions for the vagaries of reproductive biology from one person to the next. It also makes no exceptions for pregnancies occasioned as a result of incest or rape. This is hardly a minor matter. According to one source, there were 13,509 forcible rapes reported in Texas in 2020. A woman who has been raped and doesn’t discover she’s pregnant until after cardiac activity in the fetus has begun must carry the pregnancy to term, by de facto order of the state. When presented with this possibility, Governor Greg Abbott assured Texans that the State would get rid of all of its rapists, which occasioned some observers to wonder why Abbott hadn’t thought of doing this before.
Furthermore, while the aim of the law is purportedly to protect human life, the legislation issues from a state assembly that has refused for years to expand health insurance coverage for some of its poorest citizens and this year authorized the unlicensed open carry of firearms — despite protests from state law enforcement organizations that the measure would make their jobs more difficult and hazardous.
SB 8 met with swift reaction outside the courts as well. Last Saturday, thousands of women rallied at the Texas Capitol to protest the law, which essentially makes them wards of the state once electrical impulses in the fetus are detected. Texas Attorney General Ken Paxton announced an appeal of Judge Pitman’s order almost immediately. Texas wants the case go to the very conservative Fifth Circuit for review — and, if it is found to be wanting there, back to the newly reshaped U.S. Supreme Court, which earlier refused to block enactment of the law, presumably on procedural grounds.
The Texas GOP, like the Republican party in other red states, is hoping that Donald Trump’s Supreme Court appointees are ready to overturn Roe v. Wade. Litigation over this clumsily crafted bill probably won’t be the case that does it. It’s more likely that SB 8 will go down in history as yet another attempt by Republican Party representatives in Austin to cater to their right-wing base, enacting parodical laws intended to give themselves platforms to proclaim how conservative they are, and just how dedicated they remain to making sure that women live with the consequences of their pregnancies, regardless of whether the condition stems from planning or mistake, incest or rape.
Your bodies, says the Legislature. Our choices.
