We knew this day was coming when Trump got to appoint Supreme Court justices. Now it’s arrived.
The Christian dominionist state of Texas has passed SB 8, a law that bans abortion after six weeks. The law doesn’t carry criminal penalties – even in Texas, jailing women and doctors seems to be a tough sell – but it provides that anyone who assists in one can be sued. By anyone. A private citizen with no stake in the case can sue a doctor or a clinic for performing an abortion, and be awarded $10,000 or more if they win.
This bizarre strategy, which is designed to avoid judicial review, encourages stalking and vigilantism. Even worse, the law bars people who are sued from recovering their legal fees, even if they win. It’s an open invitation from the state of Texas for people with grudges to abuse the court system with frivolous and harassing lawsuits.
Six weeks is, for all intents and purposes, a total abortion ban. It’s before most women even know they’re pregnant. At this stage, the embryo is the size of a grain of rice. The law defines six weeks as the threshold of the “fetal heartbeat”, which is an absurdity, since the embryo doesn’t have anything identifiable as a heart at this stage.
Though they had to know it was doomed, abortion providers sued over the law and took their case to the Supreme Court. Here’s where the evil brilliance of the conservative strategy becomes apparent: the court didn’t rule on the merit of the case, didn’t proclaim it either constitutional or unconstitutional. It simply declined to act, refusing to issue an injunction and allowing the law to take effect. This is a foretaste of what we can expect in years to come, as the newly far-right Supreme Court has forsaken its role as protector of people’s rights against legislative overreach.
By permitting the Texas law to go into force, the Supreme Court has sent a message that Roe v. Wade, although it hasn’t explicitly been overruled, is no longer binding. We can expect copycat laws to be passed in other red states very soon.
And even if the court does belatedly step in, months or years down the line, the damage will be done. Clinics will have closed, doctors will have moved on. Abortion providers throughout the country will exist in a haze of uncertainty, knowing the law no longer protects them and they might be forced to shut down at any time. By delaying, the court can eliminate abortion in practice while protecting it on paper. I’m sure that outcome was at the forefront of the conservative justices’ minds.
Make no mistake: women will die from this. That is and always has been the end game of red-state anti-abortion laws. The law will frighten women away from seeking necessary reproductive care – or if they do come, it will scare doctors out of performing any procedure on them until they’re dying, just as with Savita Halappanavar. Rich, hypocritical white Christians will always be able to travel to blue states, while poorer women in their own states will exist in a state of Gilead-like subjugation and state-sponsored control of their reproductive systems.
If there’s any silver lining at all to be found in this, it’s that the Republicans may be like the dog that caught the car.
When abortion was protected by the courts, right-wing politicians could grandstand and thump the Bible as much as they wanted. It was a potent way to rile up their base and get religious conservatives to vote in huge numbers. But because any abortion law they actually passed would be struck down, they’d face no backlash from moderate voters angry over their rights being curtailed. (Americans support Roe v. Wade by a two-to-one margin.)
Now that calculus has changed. Calling for an end to abortion is no longer a costless position. Republican legislators can do as they please – and that means they’ll have to explain to middle-class white women why they’re taking away their reproductive health care. Millions of people who voted for Republicans because they want lower taxes may feel differently when their own bodies are on the line. Abortion is about to become a live issue in American politics, in a way it hasn’t for some time, and conservatives may be caught in a vise between an extremist primary electorate and a suddenly energized pro-choice general electorate.
It’s possible that the GOP understands this. You might expect they’d be celebrating the win that they’ve been fighting for for decades. Yet as the Atlantic notes, conservative media outlets have been unusually quiet about the Texas law.
There’s another way this law is likely to rebound on those who advocated it. If you’re a doctor, why would you want to practice in Texas now, knowing that you might be sued by an abusive husband, a busybody relative, a disgruntled coworker, or a random misogynist off the street? How much legal jeopardy could you be in for recommending the standard of care for a pregnant person with a life-threatening complication? What if you don’t perform an abortion, but someone thinks you did? Will doctors face lawsuits that they can’t defend themselves against except by disclosing all their patient’s private medical records to just anyone who demands to know?
This thread on Reddit’s r/medicine discusses exactly this dilemma. As one poster says:
I plan to never set foot in Texas for exactly this reason. The state is encouraging random lawsuits for which I’d have to finance my own defense, no matter how far fetched the accusation? No, thank you.
It’s likely that many medical professionals will flee the state rather than risk being put in such a position. And those losses will be on top of a medical profession that’s already reeling from burnout and exhaustion among doctors and nurses dealing with a deluge of unvaccinated COVID patients and a steady march of hospital closures in rural areas (due mostly to red states refusing Obamacare’s Medicaid expansion).
Red voters are getting what they wanted, and it may result in a day, possibly coming sooner than they think, where they have no access to medical care. In seeking to restrict the rights of people they see as subordinate, they’ve torn down the fabric of society all around them.