Texas has spent years attacking access to abortion. After the state exploited the Covid-19 crisis last spring to try to close abortion clinics , it was hard to imagine it could get more extreme. But the Texas Legislature is poised to do just that, by approving legislation being billed […]
But the Texas Legislature is poised to do just that, by approving legislation being billed as the first of its kind for the tactics it uses to prevent access to abortion. The measure has already been passed by the state Senate and is set to clear a House procedural vote on Thursday. The reconciled version is expected to get the governor’s approval when it reaches his desk.
Like several other states have moved to do, Texas would outlaw all abortions once cardiac activity in the fetus can be detected. That usually occurs around six weeks — only two weeks past a missed period, and before most women even know they’re pregnant. It would function as a near total ban on abortion, making no exceptions for rape or incest. In some cases, doctors who need to resolve a patient's miscarriage might also be prevented from doing so.
But it’s the enforcement provisions that make the Texas legislation unique. Everywhere else, only a few public officials can prosecute this kind of law. This legislation goes much further by allowing any person other than a state or local official to sue an abortion provider or someone who “aids and abets” another person in obtaining an abortion, whether or not they were directly involved and whether or not they’re located in Texas.
In other words, if a Texan becomes pregnant as a result of rape and is provided information about how to obtain an abortion by a rape counselor, the rapist could sue that counselor if the survivor had what the state deems an “illegal” abortion. The rapist could also sue the doctor who provided the abortion and anyone else — like a family member — who supported them in getting the abortion.
Similarly, someone who provides funds for an abortion could be sued, even if they didn’t know that’s what the money was being used for. And since anyone who "intends to engage” in providing an outlawed abortion can also be held liable, it’s possible to imagine that the rapist or other party could sue the provider in advance of the procedure to stop it from happening, denying the victim the ability to have the abortion.
These are just a few scenarios. By allowing individual lawsuits as opposed to relying on the state to act against any abortion offenses, the measure unleashes an army of abortion opponents to sue and harass providers, counselers and activists. Once it’s signed, courts could be flooded with potentially frivolous and harassing lawsuits.
The House bill does include some language to prevent a person who commits sexual assault from suing. But the law as written could be read to require that the assailant have gone through the legal system — and only about 1 in 4 sexual assaults are even reported, with the vast majority never resulting in a conviction. Not to mention putting the burden of tossing the suit on the survivor.
Worse yet, the Senate version doesn’t have any such exclusion. The two versions will have to be reconciled after Thursday’s vote, but both need stronger language to fix legislation that could be catastrophic for survivors of sexual assault. As a survivor myself, I am acutely concerned about this measure.
When I was 19, two weeks before the start of my sophomore year of college, I was raped. It completely changed my life: I stopped being able to talk to people, couldn’t go to class, couldn’t date. It shattered my sense of trust in everyone around me and the world as a whole. If I didn’t have my mom, my sister and my best friend — who believed me from the beginning and always supported me — I couldn’t have made it through that time.
This legislation could give the power back to the rapist via state-sanctioned reproductive coercion. It could even put survivors who decide to have an abortion over the objection of their rapist or abuser in danger of further harm.
I’m in the small percentage of people who were assaulted by a stranger; the vast majority of survivors of sexual violence know their assailants. If this law is passed as written, abusers could potentially isolate the survivors by suing their loved ones, counselors and caregivers. And even if the abuser himself were barred under the law, it would open up the survivor’s support system and medical providers to harassment via constant litigation from his associates.
I’ve experienced trying to navigate a legal system that was set up for anything but my healing after my rape; in fact, it only compounded the pain. I cannot imagine inviting further trauma on those around me —of putting in harm’s way the people who got me through that impossible time had I needed an abortion. Or being forced through yet more interaction with a legal system in that vulnerable time.
And I can speak from experience that even when you do report, even when you work with law enforcement, your case could still not result in a conviction; mine didn’t even go to trial.
Rapists exert power over others and seek to control them. They deny their victims autonomy over their bodies and rob them of the ability to make their own choices. They dehumanize and punish them. And so could this legislation.
Let’s be clear: Texas is about to pass a law that not only violates the U.S. Constitution as determined by Roe v. Wade, but also changes the very nature of enforcing laws — shifting them from state officials to the mob.
Essentially, the Senate and House bills create an almost unlimited potential for defendants, contradicting the Texas Constitution’s minimum requirements to bring civil legal action — i.e., to have standing — in the state. In doing so, they subvert core constitutional and democratic principles in a direct affront to our system of government.
Our elected officials should leverage their power in support of the dignity of survivors like me — not our rapists. They should be protecting our rights and securing our ability to live and thrive — not obstructing it. At the very least, they should not perpetuate the cycle of abuse. But survivors like me and organizations like the American Civil Liberties Union of Texas have the opportunity to fight back. We can, and must, defeat this effort.