Reproductive rights are a cornerstone issue for women’s rights. Decades of advocacy and protest have returned autonomy to women in many parts of the world. However, in some cases, it seems reproductive justice is crumbling. On September 1st this year, a Texas law banning abortion after six weeks into pregnancy came into force after the Supreme court failed to intervene. The law, known as The Texas Heartbeat Act, is now the harshest law against abortion in the United States.
In 1973, the legal case Roe v. Wade ruled that unduly state regulation of abortions is unconstitutional. Abortion rights activists today turn to this precedent. They argue that the Texas abortion law is an unauthorised imposition of state power.
In the past, other US states have attempted to pass similar laws that govern and regulate private lives. However, many of these laws faced legal challenges and have not been implemented. The Texas law is the first to be implemented, and this raises questions about the potential flow-on effect this will have across the country.
What is the Texas abortion law?
The Texas Heartbeat Act bans medical abortions once foetal cardiac activity can be detected. Typically, this is around six weeks into pregnancy.
Other US states have tried to introduce similar laws. However, most have been unsuccessful against the advocacy of abortion rights groups and federal courts.
Publicly policing abortions
What makes the Texas abortion law unusual is that it introduces a system of civic surveillance. In other words, the state government will not enforce the law. Instead, The Heartbeat Act effectively incentivises the public to police abortions. Citizens living in Texas can sue any abortion providers – or anyone suspected of aiding abortions – and receive a $10,000 reward for any successful lawsuit that prevents an abortion. Ordinary people who would previously be uninvolved have power to involve themselves in the decisions of a woman’s own body. They become the state’s eyes in all areas of society. An all-encompassing and seemingly inescapable governance violates women’s private lives.
This method effectively crushes women’s support systems. She can no longer fully trust her nurses and doctors, family and friends, or even an Uber driver who drives her to a clinic.
Nicole Huberfeld, a professor in health law says in an interview:
‘Historically, there have been people with very extreme pro-life views that have been willing to do things like shoot abortion doctors and seal themselves in cars to block access to clinics.’
Pro-abortion activists have established whistle-blower websites encouraging anonymous tipoffs about any alleged violations, determined to catch any lawbreakers. Anti-abortion group Texas Right to Life writes on their website:
‘Any Texan can bring a lawsuit against an abortionist or someone aiding and abetting an abortion after six weeks.’
However, many anti-abortion activists have taken to submitting masses of junk submissions to overwhelm the site. Tiktok user @black_madness21 created a bot that automatically submits fake submissions to the website every 10 to 15 seconds.
Roe v. Wade
Roe v. Wade was the pioneering Supreme Court decision that recognised a woman’s legal right to an abortion, decided on January 22nd, 1973 (in the second feminist wave).
The recent Texas abortion law violates the landmark decision made in Roe v. Wade. The 1973 decision was largely based on the US Constitution’s implied ‘right to privacy.’ The majority decided that state laws restricting a woman’s right to terminate a foetus prior to its viability outside her womb violated her right to privacy. To deny a woman’s right to choose whether or not to have a child was an unacceptable governmental constraint on her privacy and freedom.
What does the Texas Heartbeat Law mean for Roe v. Wade?
The recent Texas abortion law raises serious questions about the future of abortion rights before the court. The rights afforded by Roe v Wade are increasingly fragile. The Texas decision opens new avenues for the potential overturning of the landmark case. If future courts were to overturn the Roe v Wade judgement, 22 states would have laws to restrict abortion access.
The pending Mississippi case Dobbs v. Jackson Women’s Health Organization is an instance that may directly challenge R v. Wade’s legal assurance of an unrestricted right to abortion. The case concerns Mississippi’s law that bans most abortions after 15 weeks. Since this court case does not have the same legal ambiguities as the Texas one, it could decide Roe’s standing one way or the other. Some question if Roe v. Wade is effectively gone since the US Supreme Court did not intervene in passing The Heartbeat Act in Texas.
Several US states already have laws that limit the rights of young trans people to access certain types of medical care. It is not unfeasible that the Texas decision will have a flow-on effect in other states where laws that regulate individuals’ private relationships and medical decision-making already exist. In other words, the imposition of state regulations on citizens’ private lives may very well become the norm. Therefore, all US citizens should hold some concern over this issue, not just those living in Texas.
The real-world implications
The Texas abortion law prohibits abortion after six weeks before many women even know they are pregnant. Under Texas law, a woman would have roughly two weeks to identify her situation, confirm the pregnancy, and then make a haste decision about the best way to manage the pregnancy and obtain an abortion. Decisions around pregnancy are enormously complex; they determine what kind of life the woman will live. But women are expected to make these decisions in a matter of weeks, and this rushed process contradicts the foundations of women’s rights to collaborative, informed healthcare.
As Dr. Villavicencio says:
‘Forcing [women] to find out about a pregnancy and make a decision about how to manage it in a short period of time is antithetical to ethical care.’
Intense social surveillance and vast legal consequences mean many women will dangerously take to self-induced abortions. For example, by using pills acquired by mail.
Abortion law and the inequality cycle
As critics have noted, primarily poor and vulnerable women will suffer most from the Texas abortion law. Women who ordinarily struggle to obtain medical care will likely have no choice but to bring a child into the world. Abortion laws impede directly on women’s bodies, but also on their rights to education and their rights to obtain economic and psychological wellbeing. Having a child impacts the ability of a woman to access a full education and to enter the workforce. These domains are considered essential for a healthy, stable life.
Pro-lifers argue that ‘a life is a life.’ But they fail to consider what kind of life that child will live if their mother is not in a physically, emotionally, or financially stable place to raise it. This lack of consideration perpetuates a cycle of inequality. For instance, a female child raised in vulnerable circumstances is likely to face similar issues in her adult life. The high cost of motherhood for poor women and their offspring manifests in lasting poverty and ill-health.
Research shows that strict abortion laws perpetuate inequality
In 2018, researchers found that women who could not access needed abortions were more likely to be in poverty within six months than women who could stop their pregnancies. There is a well-documented correlation between unplanned pregnancies and poverty.
Moreover, we cannot dispute the race factor. Before The Heartbeat Act, access to safe abortion had positive effects for black women:
‘Numerous studies show that access to safe abortion in the United States had more visible positive effects among black women. After the legalisation of the procedure, the entry of black women into the workforce increased 6.9 percentage points, compared with 2 percentage points amongst all women.’
The Equal Times described the Texas abortion law as ‘a war against poor women,’ since women with access to resources can usually interrupt their undesired pregnancies. And Nicole Huberfeld rightfully asserts that ‘Texas is basically testing the law of the land on the backs of low-income, underprivileged women.’
Abortion law creates a culture of distrust
The Texas Heartbeat Act is likely to instil a culture of distrust in reproductive care. Practitioners of reproductive health will worry about the legal implications of someone bringing a lawsuit (that promises a $10,000 reward). As a result, they will be unsure if they can do what is best for their patients.
In the US, legislation protects patients’ rights – 42 CFR § 482.13 states that the ‘patient or his or her representative (as allowed under State law) has the right to make informed decisions regarding his or her care.’ However, the culture of distrust indoctrinated by the civic surveillance approach of abortion laws destabilises these protections. Women’s fundamental rights to access informed healthcare are increasingly compromised in a country that declares itself the ‘land of opportunity.’
The pro-life movement does little to provide women with the necessary support if they cannot get an abortion. Without this support, consulting illegal abortion providers is one of the only options. In other words, the law removes what anti-abortionists see as a social problem from public view. At the same time, however, it augments women’s risk and ill-health behind closed doors.
The Heartbeat Act gives no exceptions to circumstances of rape and incest
Human sexuality professor, Hal Herzog, had his students complete a survey on their views about abortion. Their responses were diverse and illuminated the moral complexity of the issue. However, nearly all students who were against abortion (pro-life) said they would approve abortions under circumstances of rape or incest. Extending this view into the broader American population, an AP/National Opinion Research Center survey revealed 84% of Americans believe abortions should be permitted in instances of rape and incest.
Yet, the recent Texas abortion law gives no such exceptions. It’s still illegal for women who are pregnant due to rape or incest to obtain an abortion after six weeks.
Children born as a result of incest are astonishingly likely to be born with physical defects and genetic disorders. Additionally, studies show a significant reduction in the quality of parent-child relationships when the mother experiences rape or sexual assault in adulthood. If a mother cannot adequately care for her child (both emotionally and physically), her child is also likely to experience substantial hardship and suffering.
Sadly, some mothers who are forced to have their rapist’s baby cannot look their child in the eyes because of the material reminder of their horrendous suffering. What sort of life would this be, for mother and child alike, to be forever biologically tied but immensely fragmented and fuelled by an unwanted hatred?
There is an irony in the pro-life argument. Anti-abortion advocates believe ‘a life is a life’. But they fail to consider the potential life-long suffering of both children and mothers entombed in the devastating experiences of rape or incest.
As aptly noted by Hal Herzog:
‘…at what point do reasonable people temper logical consistency with compassion and common sense?’
The public’s reaction
On September 1st, ‘Bans Off Our Bodies’ protests – Inspired by Latin America’s powerful feminist performance protest The Rapist in Your Path – were hosted at the Texas Capitol in Austin. The goals of ‘Bans Off Our Bodies’ are to call out those who oppress abortion rights, show the leaders who have failed its citizens, and support access to abortion.
Some people have also taken to social media to express their views. TikTokers are spreading the gospel, encouraging thousands of people to inundate abortion whistle-blower websites with false submissions. Celebrities Bradley Whitford and Rosie O’Donnell expressed their anger towards the new abortion law, likening it to ‘a real version’ of Margaret Atwood’s dystopian novel ‘The Handmaid’s Tale.’
Following the voices of prominent musicians and artists, author and political activist Don Winslow created a powerful video exposing the political hypocrisy underlying the Texas abortion ban.
As mentioned earlier, the civic enforcement of The Heartbeat Act is heavily contested. Abortion activists are flooding Pro-Life Whistleblowers (a website welcoming anonymous tips about abortion aiders) with masses of fake reports and bogus submissions. However, the website can track users’ IP addresses to block them from sending forged submissions and filter out illegitimate tips.
In a Tweet, Tesla CEO Elon Musk said:
‘…I believe government should rarely impose its will upon the people, and, when doing so, should aspire to maximize their cumulative happiness.’
Meanwhile, pro-life advocates are rejoicing the law. They are celebrating the annihilating effect this will have on the abortion industry as well as ‘the thousands of children it will save.’ Needless to say, one can only question what ‘saving’ means in this context.
A war against women
Ultimately, abortion laws are an unjustified intrusion of state power into private lives. But not all private lives, just those of women. As stated by Laurie Penny, ‘the goal of anti-abortion laws in America is to put female sexuality under strict and brutal state control.’ The patriarchal structure of our society conveniently replaces the alleged egalitarian setup. Poor and vulnerable women are particularly embroiled in the law’s harm, and in this way, it also functions as a class battle.
It’s no longer just about the life of a foetus or a heartbeat detection at a mere six weeks. The Texas abortion law devastatingly obstructs women’s rights. Not only their rights to choose and their rights to control their own bodies, but also their rights to education, their rights to employment, their rights to safety, their rights to privacy, and their rights to have a voice.
‘Women should be enabled fully to participate in the public sphere on equal terms with men [. . . ] control of one’s own fertility is a fundamental prerequisite for such full participation’ – Sammy Sheldon 2015
This is a problem far more expansive than a moral debate on a medical procedure. It is women’s entire lives as individuals and women’s state of equality in an alleged ‘equal’ collective. This is why you should care.
(Feature Image: Photograph by Saul Loeb/AFP via Getty Images)