Unconstitutional anti-abortion laws are often a grim kind of misogynist political theater. But that might be changing Senate Bill 8, the six-week abortion ban that the Texas governor Greg Abbott signed into law last week, is a total ban on abortion in everything but name. The bill is one […]
Unconstitutional anti-abortion laws are often a grim kind of misogynist political theater. But that might be changing
Senate Bill 8, the six-week abortion ban that the Texas governor Greg Abbott signed into law last week, is a total ban on abortion in everything but name. The bill is one of several across the country that bans abortions at six weeks of gestation – in layman’s terms, four weeks after fertilization and two weeks after the first missed period.
Texas is the 9th state to pass such a bill, named by the anti-choice movement that lobbies for them as “fetal heartbeat bills”. The term is a misnomer, because at six weeks of gestation there is neither a fetus nor a heartbeat. Indeed, there is no heart. At six weeks, the pregnancy consists of an embryo, which will not develop into a fetus for nearly another month. No heart, and no other organ, is present. The so-called “heartbeat” that abortion opponents refer to is actually the pulsing of some cells that are starting to specialize, and which will eventually form cardiac tissue if the pregnancy continues. At the phase of pregnancy when abortions are banned by the new Texas legislation, the embryo is about the size of a pea. There are no exceptions for rape or incest.
The bill amounts to a near total ban precisely because of how early it cuts off legal abortion. At that stage in a pregnancy, most women don’t yet know that they are pregnant. Even those who do sometimes can’t access abortion care that early, as providers often prefer to wait until eight or ten weeks of gestation to perform abortions, for safety reasons. Before that stage, it is difficult to rule out the possibility of an ectopic pregnancy, an unviable condition that can be fatal.
The Texas bill is set to go into effect in September, but the implementation of its central provision, the abortion ban, is almost certain to be delayed as the law is challenged in federal court. This has been the fate of all eight of its predecessor bills, which have been delayed or thrown out by federal courts after being passed in Georgia, Iowa, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, South Carolina, and Tennessee. The same has been true for a number of other bills meant to ban abortion at other pre-viability stages of pregnancy: eight weeks, ten weeks, twelve weeks, eighteen weeks.
For years, Republican controlled states have always passed these bills, and federal courts have always thrown them out, even those courts in districts where the federal judiciary is packed with arch-conservatives and anti-abortion ideologues. There has simply not been a legal rationale for upholding them. The supreme court’s precedent that outright abortion bans pre-viability are unconstitutional – established in 1973 with Roe v Wade and reaffirmed in 1992 with Planned Parenthood v Casey – is simply too unambiguous.
If Republicans know that these state laws are going to get thrown out by the federal courts, why have they kept on passing them? Even without formal implementation, abortion bans accomplish a lot for the anti-choice movement. They frighten and confuse pregnant women, and they further stigmatize abortion. They prove useful messaging and fundraising tools for state Republican politicians. And they set up test cases for the federal courts, allowing the anti-choice movement to workshop new legal theories and tactics for narrowing abortion access and harassing providers out of business.
It’s in this last element that the Texas law represents an innovation for the misogynist right. In addition to the abortion ban, the bill includes a peculiar provision that privatizes the enforcement of that law. SB8 grants standing to any individual – including those outside the state – to sue people in Texas who “aid or abet” an abortion or who “intend” to help an abortion patient. Like Trap laws – targeted restrictions on abortion providers, a separate slate of state level anti-choice laws that are designed to make it too expensive and burdensome for providers to perform abortions within a state – this part of the law seems largely intended at punishing doctors and nurses, increasing provider overhead costs, and ultimately shutting down clinics. According to the bill, those who sue can collect a minimum of $10,000 if they win. But if a defendant prevails in the lawsuit, they are not able to recoup legal fees.
But in addition to targeting providers, the civil lawsuit provision of the Texas bill is so broadly written as to amount to a large-scale attack on any kind of action or speech in support of abortion rights. It would render virtually everyone involved with the operation of a clinic, or who materially contributes to a pro-choice organization, to be sued. Clinic escort volunteers can be sued; so can non-medical clinic staff, like janitors or receptionists. Anyone who has donated to an abortion fund, or a pro-choice organization such as Planned Parenthood, can be sued under the Texas law. So can anyone who provides any kind of material support to a patient seeking an abortion, such as a ride to or from the clinic. After an outcry, the Texas legislature amended the bill to create an exception, saying that a rapist would not be permitted to use the law to sue the providers who gave his victim her abortion. But the law only applies to those men who have been convicted of rape. In Texas, 91% of rapes go unreported.
If left intact, the law would not only force Texas women to remain pregnant against their will; it would also empower any misogynist or anti-choice person to impose their bigotry on Texas residents through frivolous and harassing lawsuits. Hopefully, courts will throw out the civil suit provision. If they don’t, free speech in Texas will be severely curtailed.
For the most part, these bills have functioned as a grim kind of misogynist political theater, deliberate messaging exercises that don’t really go anywhere. But that might be changing. Last week, the supreme court agreed to hear a case challenging a Mississippi law that bans abortion at 15 weeks of gestation. The central question in that case will be whether pre-viability abortion bans really are constitutional. If the court rules in favor of Mississippi – and they appear likely to – abortion bans like the one that Texas just passed will become legal. And the falsely named “heartbeat bills” will go from a performance of misogyny, to an enforcement of it.
Moira Donegan is a Guardian US columnist
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