If you are struggling to pay for an abortion, and you are in Texas, you are likely relying on an abortion fund, like the Texas Equal Access Fund or Lilith Fund. Those heading to the website of Fund Texas Choice now see this message: “Abortion is still legal in Texas!” Republican lawmakers have done an effective job in convincing the public that it’s not. In May, Republican lawmakers there effectively banned the procedure by prohibiting it before some people even know they are pregnant. They did so, in a provision that gained national attention last week, by essentially deputizing anyone who wishes to enforce the law against anyone in Texas.
The state won’t be bringing legal action against abortion providers, something that’s been a fruitful tactic on the right. Instead, this law proposes something new: It will rely on almost anyone who wants to enforce the law themselves by permitting them to sue clinics and others they say are in violation of the law. “Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” said Texas Governor Greg Abbott when signing the bill. Now he and the legislature are endowing the people they govern with the state’s already considerable powers of reproductive control and coercion. It makes explicit something core to the political ethos driving anti-abortion laws: The Texas heartbeat bill marries the powers of the state with the power of the patriarchal family.
Abortion in Texas—as in much of the country, which again saw a record-high number of anti-abortion laws passed this year—remains legal, yet increasingly difficult to access. This is because anti-abortion groups have pushed states to pass restrictions on abortion constructed to skirt the legal precedent set in Roe v. Wade, narrowing and narrowing the circumstances under which abortion is lawful. Now Texas has thrown another restriction, S.B. 8, this so-called “heartbeat bill,” to the courts, leaving scores of Trump-appointed conservative judges to grapple with its meaning. Texas now joins 12 other states that have tried to outlaw abortion at six weeks past the last menstrual period or earlier, according to the Guttmacher Institute, though all have been challenged in court.
Where 12 other states failed, as the state senator who introduced the bill has suggested, Texas may succeed, because the Supreme Court is tilting against abortion rights. On Tuesday, a group of abortion providers led by Whole Woman’s Health—as well as abortion funds and support networks, medical providers, health center staff, and clergy—filed a suit to block enforcement of SB8. The law “flagrantly violates the constitutional rights of Texans seeking abortion and upends the rule of law in service of an anti-abortion agenda,” they write in a complaint filed in the United States District Court for the Western District of Texas. “If this attempt to strip Texans of their federal constitutional rights is not blocked, then any state could similarly subvert the federal constitutional rights of a group disfavored in that state.” The court could grant them a preliminary injunction, preventing the law from going into effect on September 1, while it considers the case.
Unlike the other early abortion bans, which were clearly at odds with Roe v. Wade, Texas gives private citizens the right to bring a civil action against not just providers but anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” (And an incentive to do so: A successful suit against a clinic that provides an early abortion can net the citizen watchdog $10,000.) The Texas state senator who introduced the bill, Bryan Hughes, has said he adopted this approach after a number of district attorneys in Texas pledged not to enforce the ban. So he put it on the people of Texas—and not just Texas, but conceivably anyone in any state who wants to bring an action against someone “aiding or abetting” an abortion in Texas. The law deputizes anyone who has antipathy toward anyone else’s reproductive and sexual choices, and, in the name of the law, empowers them to cast a wide net of nuisance lawsuits, against—say—the taxi driver who took your mother to the Whole Women’s Health clinic in McAllen, or the friend who helped your daughter raise money and let her stay with them after her procedure.
“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there,” Melissa Murray, a New York University law professor, told The New York Times. The people perhaps best positioned to enforce this law, however, are people who already know the person who had an abortion. In this way, S.B. 8 formalizes the more mundane systems of social control within families, within communities. Once the state had to rely on a parent’s disapproval to drag on for so long that their daughter’s pregnancy was past the date when she could get an abortion. Now that parent—or a teacher, or a partner—can threaten legal action.
“What this law does is make abortion practically inaccessible for people in Texas,” Kamyon Conner, executive director of Texas Equal Access Fund, told the Fort Worth Star-Telegram. While a political science professor at Rice University in Houston speculated to the same paper that this was “a purely symbolic bill,” like much legislation pushed by Texas Republicans this session as part of their “culture war agenda,” a culture war has material costs. The law has already forced abortion providers and funders to scramble in response. “We’ve already heard from a lot of teens that think abortion’s illegal already,” Rosann Mariapurram of Jane’s Due Process, a group in Austin that helps young people legally access abortion, told the Dallas Observer.
The impacts are already being felt by those who are trying to access an abortion right now in Texas. In six weeks, on September 1, the law goes into effect. “If SB 8 is fully implemented,” the Lilith Fund has advised, “abortion funds like Lilith Fund will fund abortion for people up to 6 weeks gestation in Texas, and we will fund abortion for Texans who need to travel out of state to access abortion care after 6 weeks gestation.” Abortion is still legal in Texas. But the letter of the law isn’t nearly as powerful as the legal environment Texans now live in when it comes to abortion. S.B. 8 may not pass legal muster, but it doesn’t have to, not if shaming and coercing people is the point.
This article has been updated.