For decades, Republican strategists have seen exploiting both issues as a way to hang on to power.
Insurance companies, taxi-drivers, friends, donors to nonprofits, health-care workers—any and all people with even a minor role in enabling an abortion are potentially liable. The law is not only a radical departure from convention, it’s a repudiation of due process, granting standing to individuals who otherwise wouldn’t have it. A more judicious Court, rather than one with a majority of Justices selected because of their ideological opposition to abortion, would have halted the implementation of the Texas law for this reason alone.
The Roe decision took a calendar approach to abortion, allowing a woman to terminate a pregnancy for almost any reason during the first two trimesters, with some state regulation of abortion allowed after the first trimester, and more after the second trimester, at which point a fetus is viable outside the womb, and a state’s interest in protecting it becomes “compelling.” Even so, anti-abortion activists used the trimester timetable to chip away at Roe. The Court’s 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey upheld a constitutional right to abortion, but eliminated the trimester timetable, which opened the door for states to determine their own standards surrounding fetal viability. Scores of restrictive statutes followed.
According to the Guttmacher Institute, a pro-choice nonprofit, between January, 2011, and July, 2019, states enacted four hundred and eighty-three new abortion restrictions. The Texas law, S.B. 8, is the most recent and extreme iteration of these. At six weeks, many women do not know that they are pregnant, but, according to anti-abortion activists, that is when a fetal heartbeat is first discernible. Medical professionals, though, say that this is misleading, because at six weeks, though the cells that will eventually form a heart may have begun to emit electrical signals, a fetal heart will not fully develop for about another fourteen weeks. Nevertheless, S.B. 8 penalizes health-care providers who fail to search for a signal or who continue to treat the patient if they detect it.
Texas was already one of the most difficult places in the country to obtain an abortion. Guttmacher reports that there was a twenty-five-per-cent decline in the number of abortion clinics in the state between 2014 and 2017. In 2017, ninety-six per cent of Texas counties had no abortion facilities. Last year, Governor Greg Abbott issued a temporary ban on certain health-care procedures, including abortions, ostensibly because of the coronavirus pandemic. If the ban had been long-term or strictly implemented, women in the state would have had to travel an average of four hundred and forty-seven miles, round trip, to obtain abortion services.
What makes the Texas law especially odious is that, by empowering random individuals to enforce it rather than leaving that to officials, the authors of S. B. 8 have complicated the ability of abortion-rights advocates to block the law in court, as there is no state agent to sue. As Chief Justice Roberts wrote in his dissent, “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.” This clever subterfuge gave the Court’s conservatives an opportunity to make the disingenuous claim that they were allowing the law to stand because it was not yet clear that the defendants in the case “can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” The Justices further claimed that they were not ruling on the merits or the constitutionality of the law—though it is unconstitutional, according to the protections afforded by Roe—and suggested that the plaintiffs could, in theory, challenge S.B. 8 going forward. In a stinging dissent, Justice Sonia Sotomayor wrote, “Taken together, the act is a breathtaking Act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.” And what of those women? According to a report in the Texas Tribune, the day before the law went into effect, a clinic in Fort Worth saw more than a hundred women right up to the midnight deadline. The next day, they had to turn away patients who no longer met the new restrictions.As the challenge to S.B. 8 was working its way through the courts, Republicans in the Texas legislature were busy writing similarly draconian laws to make it harder to vote, especially for people of color. S.B. 1, the bill that inspired Democratic legislators to flee the state earlier this summer in order to deprive their Republican colleagues of a quorum, was finally passed this week, and was sent to Governor Abbott for his signature. Among its provisions, the law requires monthly citizenship checks; entitles partisan poll watchers to move freely within polling sites and makes it a criminal offense to obstruct their observation of election workers; and eliminates twenty-four-hour and drive-through voting. Though the two laws address different domains, they are connected: in Texas and elsewhere in the country, a ligature of racism connects efforts to deny people of color their right to vote and women—disproportionately women of color—their right to terminate a pregnancy.
The Roberts Court’s 2013 decision in Shelby County v. Holder, which gutted key provisions of the Voting Rights Act, enabled Republican legislatures to pass hundreds of laws, such as S.B. 1, in Texas, to make it harder for people—again, particularly people of color—to vote. (The Voting Rights Act was intended to rectify the long history of denying Black Americans all the benefits of citizenship, including the right to cast a ballot.) Well before Shelby, in the nineteen-eighties, Republican strategists, most notably Paul Weyrich, who famously said that “our leverage in the elections quite candidly goes up as the voting populace goes down,” understood that to hold on to power Republicans had to do two things: keep Democrats from voting and find new Republican allies.
People of color were a suitable target for their first aim, since they tended to vote, overwhelmingly, for Democrats—hence the various attempts to suppress the vote in the years before Holder, such as gerrymandering and the multitude of laws passed in its wake. Meanwhile, some evangelical Christians, who had largely eschewed politics, turned out to be ripe for conversion when they found themselves unable to obtain tax-exempt status for “segregation academies”—schools that followed what they claimed to be a Biblical mandate to keep the races apart. According to the historian Randall Balmer, in 1979, six years after Roe, Weyrich encouraged Jerry Falwell and other evangelical leaders to seize “on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term . . . because the anti-abortion crusade was more palatable than the religious right’s real motive: protecting segregated schools.”
It is undeniable that there are sincere people with a deeply held belief in the sanctity of life, which, for them, overrides a woman’s right to control her own body, but that is not the motivation of the authors of S.B. 8. If it were, we would see those legislators apply the same standard to gun control, abolition of the death penalty, enforcement of public-health mandates, and a commitment to the social welfare of children, especially children born into poverty. Instead, those legislators appeal to “the right to life” in the same way that they invoke the term “voter fraud”—in order to consolidate their power and pursue an anti-democratic agenda.
President Biden responded to the Supreme Court majority’s decision to abet this ploy by stating that his Administration would be launching “a whole-of-government effort to respond . . . to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.” Others reacting to the Court’s dereliction have renewed calls to add more Justices and to end the filibuster. There are also calls for Congress to pass the Women’s Health Protection Act in order to create a federal abortion law to override S.B. 8 and other anti-abortion state statutes. Still, though any of these measures has the potential to reinforce the protections codified by Roe, none of them will help the women who are being turned away from clinics now, and they won’t shield their supporters from the bounty hunters who have been authorized to track them down. And, given the glacial pace of congressional “action,” these measures likely won’t prevent other states from passing copycat anti-abortion statutes. (Within twenty-four hours of the law’s going into effect, the president of the Florida state Senate said that he was considering introducing similar legislation.)
By doing nothing to stop S.B. 8, the Court has effectively sanctioned extortion. Days before the Texas law went into effect, an activist on TikTok posted a computer script designed to overwhelm a Web site created by an anti-abortion group to report those who have violated the law; the script allows users to inundate the site with fake claims. How pathetic that a few lines of code may have temporarily offered the most effective way to protect the rights of Texan women.