There are so many egregious layers to Texas’ ban on abortions, it is hard to know where to begin.
There is the blatant hypocrisy of state leaders such as Gov. Greg Abbott and Lt. Gov. Dan Patrick who fashion themselves as the champions of ‘‘life,’’ but only for the unborn. When it comes to children too young to be vaccinated, they have fought universal masking in schools that would help keep these kids safe from COVID-19.
And there is the U.S. Supreme Court’s timorous conservative majority, which in the middle of the night let stand a law that blatantly violates precedent, hiding behind procedural and technical language, noting their order “is not based on any conclusion about the constitutionality of Texas’s law.”
Which is, of course, the very reason why Texas’ abortion ban should have been stayed, a point Chief Justice John Roberts made in his dissent: “I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”
And this brings us to the law itself, which so neatly confines women to unwanted pregnancies, while incenting Texans to surveil and prosecute medical providers or even Uber drivers who happen to take someone to an appointment.
There will be no abortions after six weeks, which is before many women know they are pregnant. There are no exceptions for rape or incest. Even in a state like Texas where views on abortion are deeply split and many oppose abortion, this is too far. Polling has shown most opponents of abortion support exceptions for rape and incest, as well as when the woman’s life is in danger.
The law will disproportionately affect low-income women. Women who can’t leave Texas to have an abortion in another state because they lack the financial means or time will be left to carry an unwanted pregnancy or will attempt an illegal abortion—because, as the research shows, abortions happen whether they are legal or not.
Illegal abortions fell dramatically after the Supreme Court made the procedure legal in 1973. As the Guttmacher Institute, which studies and promotes policies for sexual and reproductive health, notes, a 1976 report from what is now the Centers for Disease Control and Prevention found that “illegal procedures in the country plummeted from around 130,000 to 17,000 between 1972 and 1974. The number of deaths associated with illegal abortion decreased from 39 to five in that same time period.”
To enforce the new law in their state, Texans must act as abortion bounty hunters, suing health care providers, women’s family members, friends and even Uber drivers with rewards of up to $10,000. It’s an absurdity best explained by Supreme Court Justice Sonia Sotomayor’s scathing dissent:
“The Act authorizes any private citizen to file a lawsuit against any person who provides an abortion in violation of the Act, ‘aids or abets’ such an abortion (including by paying for it) regardless of whether they know the abortion is prohibited under the Act, or even intends to engage in such conduct. Courts are required to enjoin the defendant from engaging in these actions in the future and to award the private-citizen plaintiff at least $10,000 in ‘statutory damages’ for each forbidden abortion performed or aided by the defendant.’’
This invasion of privacy, intrusion into the most personal of decisions and invitation for frivolous lawsuits should trouble all Texans. So should the possibility that this template—delegating the enforcement of laws to private individuals—could be applied to other settings, say, voting.
The abortion discussion is often framed in stark terms, but in reality it is deeply nuanced. One could support abortion rights but never personally choose to have one. One could oppose abortion but allow exceptions for rape and incest or severe medical complications. The landmark ‘‘Turnaway Study’’ from the University of California in San Francisco has shown women who are denied abortions are more likely to be tethered to abusive relationships, suffer from pregnancy complications and poor physical health, and live below the poverty line.
None of this nuance is reflected in Texas’ abortion ban. Abortion under Roe v. Wade has been a constitutional right for women in the United States. But for all intents and purposes that no longer applies in Texas.
The San Antonio Express-News editorial board published this editorial on Sept. 3.