The Texas Abortion Law Could Backfire on Its Supporters
One month ago today, abortion opponents in Texas won a major victory: The Supreme Court allowed a novel and near-total ban on abortion to go into effect, making the state the first since Roe v. Wade was decided in 1973 to effectively outlaw the procedure.
The law now faces multiple challenges in the lower courts after two out-of-state men sued a Texas abortion provider; they say they plan to collect a bounty if they win, making the stakes of the law—and its Wild West absurdity—remarkably clear. The Department of Justice has sued Texas over the law, aiming to prevent its enforcement; the first hearing on that case is happening today.
As the ban goes to court and the backlash against it grows, abortion opponents are claiming to be surprised that the law is being used as written—and are perhaps realizing, belatedly, that their vigilante strategy comes with more than a few perils. Meanwhile, demonstrators will gather this weekend for the fifth annual Women’s March, a mass protest that, this time around, is explicitly in defense of reproductive rights.
[Read: The messy post-Roe legal future awaiting America]
The Texas law is as shocking as it is inventive. It allows any private citizen, anywhere in the United States, to sue anyone in Texas who “aids or abets” an abortion performed after six weeks of pregnancy (roughly two weeks after a missed period, and before most people know they’re pregnant). Aiding or abetting is defined broadly enough to include not just doctors who perform abortions, but receptionists who schedule appointments, Uber drivers who drop women off at clinics, boyfriends who accompany their partners, and moms who hold their daughters’ hands through the procedure. Any person who sues and wins is entitled to have their legal fees repaid and can collect a $10,000 sum. Defendants—even if they win—are barred from recovering their own legal costs.
The law, which essentially offers a bounty for harassment and public shaming, feels uncomfortably close to some of the most dangerous anti-abortion tactics. Among the most infamous are the Old West–style Wanted posters of doctors that abortion opponents disseminated through the 1980s, ’90s, and 2000s; several of the physicians whose faces were on those posters were later gunned down, including the Kansas doctor George Tiller, who was murdered at church. Some members of the radical anti-abortion movement offered reward money to any “informant” who proffered information leading to the conviction of abortion providers. They also focused on “collaborators” who they believed aided or abetted abortion, harassing everyone from clinic administrative assistants to car services that gave patients rides to landscaping companies that mowed clinics’ lawns.
The Texas law mirrors this reliance on vigilantism—and is an invitation for any yahoo with a grievance to file a lawsuit and reap the benefits. Predictably, two yahoos— disbarred attorneys, one from Arkansas and the other from Illinois—have. They both filed suit against Alan Braid, a San Antonio abortion provider who wrote an article in The Washington Post saying he had provided an abortion after the six-week mark, essentially in an act of civil disobedience. “If there’s a $10,000 pot of gold at the end of this rainbow, I want it,” one of the men, Oscar Stilley, told the Y’all-itics podcast. “Why shouldn’t I get it?”
The law, in other words, is being used exactly as intended. But the same abortion opponents who wrote it are crying foul.
“Neither of these lawsuits are valid attempts to save innocent human lives,” John Seago, the legislative director of Texas Right to Life and the man behind the Texas law, told The New York Times. “Both cases are self-serving legal stunts, abusing the cause of action created in the Texas Heartbeat Act for their own purposes.”
Neither of the men who filed a lawsuit opposes abortion rights. One has explicitly said that he filed his suit to demonstrate how preposterous the law is. Abortion opponents had apparently hoped that the law would be enough of an intimidating force to shut down clinics. And it was working—until Braid wrote his op-ed. Now both lawsuits against him pose a direct challenge to the law’s constitutionality. And they highlight for the public just how dangerous it is to functionally outlaw abortion and empower random citizens as enforcers.
This is a terrifying moment for supporters of reproductive rights, without question. But it may also be more precarious than it appears for abortion opponents. Yes, they have ridden a wave of abortion restrictions all the way to the Supreme Court, but they’ve also awakened America’s pro-abortion-rights majority—and that majority now has its eyes turned on the nine Supreme Court justices.
[Chavi Eve Karkowsky: Another extremist law that Americans have to live with]
For the first time in nearly half a century, a majority of the justices on the Court seem to side with abortion opponents. In December, they are set to hear arguments on a Mississippi law that bans most abortions after 15 weeks, in direct violation of Roe’s requirement that abortion remain generally legal before the point of fetal viability. The Mississippi case could be a vehicle for overturning Roe outright or gutting it beyond recognition. If the Court uses this opportunity to dismantle abortion rights, that would initially kick the question of the procedure’s legality to the states. But there’s little doubt that the anti-abortion movement would quickly organize attempts to outlaw abortion nationwide. It is closer than ever to achieving its ultimate goal: ending the era of safe, legal abortion in the United States.
Yet there has long been a tension within the anti-abortion movement between the radicals who use vigilante tactics and those who want to put a kinder, gentler face on opposition to reproductive rights. The latter group has often quietly enabled the former, but has also typically favored an incremental approach of dismantling abortion rights piece by piece using the respectable mechanisms of the legislatures and the courts. Their slower, more deliberate strategy has culminated in the Mississippi case.
The Texas law throws a wild card into the mix. Because it relies on the civil system instead of criminalizing abortion, and because it survived requests for the Supreme Court to prevent it from going into effect, it offers a model to other states that want to functionally outlaw abortion right now. But it has also inflamed abortion-rights advocates at a crucial juncture, and made them all the more determined to send the message that banning abortion will not be met with quiet acquiescence.
It’s impossible to know what goes on in the minds of Supreme Court justices. But many abortion-rights proponents and Court watchers believe that pro-choice protests and a fear of undermining the public’s trust by appearing to be political have influenced the Court’s decisions in past abortion cases. And that’s a real concern for the Court: Last week, its public approval hit an all-time low, according to a new Gallup survey. Nearly twice as many Americans say the Court is too conservative than say it’s too liberal. And liberals aren’t the only ones who are losing confidence: In the past year, both approval of the Court and confidence in it have dropped by more than 10 points among Republicans and independents.
The long-growing perception of partisanship and attendant lack of confidence encouraged progressives to float the idea of expanding the Court—something that had been politically taboo for decades. In April, President Joe Biden, hardly a radical, issued an executive order to form a commission tasked with considering the Court’s size and the justices’ tenure. An expanded Court would lessen the conservative justices’ power; new tenure rules could put some of them out of a job.
The waning public trust in the Court, and its potential consequences for the Court’s makeup, seems to be on several of the justices’ minds. Four of them have spoken publicly about it in recent weeks, defending the Court against accusations of politicization. (“This court is not comprised of a bunch of partisan hacks,” said Justice Amy Coney Barrett, whose warp-speed confirmation just before Donald Trump lost his reelection campaign outraged liberals.)
Few issues stand to undermine public confidence in the Court more than curtailing abortion rights. Despite the narrative that abortion is a singularly polarizing matter in the United States, the reality is that a significant majority of Americans oppose overturning Roe, and fewer than a third say they want the Court to reverse the 1973 decision. Even Republicans are nearly evenly split on Roe; 46 percent want it overturned and 43 percent say the Court should leave it in place. There is a similarly surprising diversity in views among self-identified pro-lifers: Nearly 40 percent of them want Roe upheld. And Americans oppose Texas-style abortion bans beginning at six weeks by a 20-point margin.
Meanwhile, thousands of Texans are being forced to seek services far from home, inundating neighboring states’ clinics. Others may be taking matters into their own hands. And still others find themselves forced to continue a pregnancy they don’t want, and will have a child they did not intend to have. All Texas women have received a clear message: Your constitutional rights don’t apply here.
The Supreme Court justices are no doubt paying attention. When asked to keep the Texas law from going into place, they punted, allowing the state to effectively ban abortion but leaving the door open for challenges in the lower courts. Letting the law go forward was a troubling sign to be sure, but also something of a trial balloon.
Now the Court is being asked to issue a much more expansive ruling on abortion rights. The result very well may be as dire as abortion-rights supporters fear. But it’s also possible that enough of the Court’s conservative justices—or even just one—will see the growing backlash and correctly assess that the Mississippi case is about much more than abortion—that the public’s trust, the Court’s legacy, and the stability of the institution itself may all hinge on its result.
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