- by C J Atkins
- The Guardian
- Issue #1978
Women banned from accessing abortions before they even know they’re pregnant. Bounties of $10,000 paid out of public money for anyone who takes court action to stop an abortion. Those are just a couple of details of a draconian new law attacking women’s reproductive health in Texas which the Supreme Court allowed to take effect late Wednesday night, first September.
In a 5-4 vote, the right-wing reactionary majority on the nation’s highest court opted not to hear an emergency appeal from abortion providers in the state. Doctors and women’s rights advocates were desperate to block measures passed by the Republican state legislature that essentially kill a woman’s right to choose and make the historic Roe v. Wade ruling that legalised abortion non-existent in the Lone Star State.
Proposed by Christian extremists at the statehouse in Austin, the restrictive measures were signed into law by GOP Gov. Greg Abbott in May. It was one of 666 new pieces of legislation taking effect Wednesday that were passed as part of a hard-right agenda ahead of the 2022 mid-term elections.
The Republican Party has its eyes set on energising its voter base and locking in control of Texas in a bid to outrun political and demographic changes that could see the state switch to the Democratic column in the near future. Fresh restrictions on voting rights are another key component of GOP strategy.
Other measures that became law Wednesday include killing off licensing and training requirements for carrying guns in public, banning the teaching of Critical Race Theory in classrooms, making protesting on roads a crime, and more.
It is the abortion restrictions, however, which have garnered the most attention because of the extent to which they go in denying women access to health care and the devious manner in which they are to be enforced.
The law takes off from the “detectable foetal heartbeat” concept that has been employed by Republican lawmakers in several states when crafting anti-abortion measures. The Texas GOP’s law blocks women from getting an abortion once an ultrasound is able to detect cardiac activity; this typically happens around six weeks – before most women even know they are pregnant.
Most medical professionals reject the supposed “heartbeat” standard because at six weeks an embryo is not yet a foetus and a heart doesn’t yet exist. According to Dr Michael Cackovic, a maternal foetal medicine specialist at Ohio State University, the cardiac activity termed a “heartbeat” by Republicans is a faint flutter only detectable by advanced machinery and not a beating heart.
The cruelly innovative part of the Texas law, however, is its enforcement mechanism. Its authors wrote it in a way that intentionally evades federal courts by making private citizens, rather than the state government, responsible for taking legal action to stop abortions. The gate is thrown open for individuals to file lawsuits against any person they deem to be participating in providing or helping a person access an abortion.
It exposes not just doctors but also health information providers and advisors, family members of women, friends who drive a woman to a clinic – essentially anyone connected to facilitating a woman’s right to make decisions about her reproductive health – to legal liability. Any anti-woman vigilante who succeeds in their lawsuit will be rewarded with a cash prize of $10,000, to be paid from taxpayer money.
The incentive has religious fundamentalist groups like Texas Right to Life eyeballing the potential financial windfall; it has already set up a hotline-style website where people can leave tips about anyone allegedly helping a woman get an abortion.
Four Republican-named justices on the Supreme Court banded together in rejecting the appeal by Texas health providers just before midnight Wednesday. Chief Justice John Roberts, who has crafted a reputation as somewhat of a centre-right jurist, joined the three Democratic-named justices in dissenting from the majority.
The right-wing justices claimed their decision was based on the appellants’ failure to meet the burden of proof that a stay – a block – on the Texas law was merited. Their unsigned order left open the likelihood that the issue will be revisited, however, as they said it was “not based on any conclusion about the constitutionality of Texas’s law.”
In a dissent, Justice Sonia Sotomayor called the decision “stunning,” saying the Texas law was “a flagrantly unconstitutional attempt engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.” She accused her conservative colleagues of “bury[ing] their heads in the sand” by refusing to acknowledge that reality.
Justice Elena Kagan denounced the law as “patently unconstitutional.” She went further, though, accusing the state of outsourcing its own functions. Kagan said it was wrong to allow “private parties to carry out unconstitutional restrictions on the State’s behalf.”
The vote of Trump-named Justice Amy Coney Barrett, the third woman on the high court, to open the door to such an attack on women draws attention to the impact that Justice Ruth Bader Ginsburg’s death had on the court’s ideological tilt. If RBG was still on the court, the 5-4 tally would have been flipped against Texas.
Nancy Northup, head of the Center for Reproductive Rights, the legal group representing the Texas health professionals challenging the law, told the press early Thursday that the Texas law “blatantly violates Roe v. Wade” – the 1973 Supreme Court decision that recognised a woman’s constitutional right to an abortion.
“Texas politicians have succeeded for the moment in making a mockery of the rule of law, upending abortion care in Texas, and forcing patients to leave the state – if they have the means – to get constitutionally protected healthcare. This should send chills down the spine of everyone in this country who cares about the constitution,” Northup said.
Dr Gerald E Harmon of the American Medical Association – the nation’s top organisation of doctors – called the Texas law and the Supreme Court’s inaction “egregious.” He denounced the law for its ban on abortions but also for its interference “in the patient-physician relationship.” He said the law “places bounties on physicians and health care workers simply for delivering care.”
The impact of the law will be felt most harshly among lower-income women and women of colour in communities that already face major barriers in accessing health care of every kind. Abortion services will now have to be sought in other states, requiring extra money and long drives. It is estimated that the average round-trip driving distance for a Texas woman to an abortion clinic will now increase from twenty-four miles (39 km) to nearly 500 miles (805 km).
On social media, commenters were comparing Texas’s attacks on women to the Taliban, the religious fundamentalist group that has just retaken control of Afghanistan. “When does the airlift start for getting women and girls out of Texas?” Twitter user @Ajohms1956 asked in a post that went viral Wednesday evening.
But nearby states offer little refuge; Republican governments in states like Oklahoma, Arkansas, Louisiana, and others have also been hard at work making abortion access more and more difficult.
Meanwhile, as the clock counted down to midnight Wednesday, clinics across Texas were in a mad rush to provide services to women seeking help before the deadline. Amy Hagstrom Miller, who runs a clinic in Fort Worth, told the Associated Press that the last service was provided at 11:56 pm. Right-wing anti-abortion activists were already in the parking lot shining flashlights and looking for evidence for a lawsuit.
Back in Austin, Abbott and lawmakers now have their targets set on hemming in abortion medication – aiming to destroy another reproductive health option available to women. But activists and advocates aren’t giving up on resisting the current round of prohibitions either, especially as the Supreme Court left open a door for further review. Northrup of the Center for Reproductive Rights has pledged to “keep fighting this ban until abortion access is restored in Texas.”
In Washington, meanwhile, the next women’s rights case before the Supreme Court is scheduled for fall when Mississippi’s latest abortion restrictions come before the justices.