OP ED: The Texas War of 2021: The War Against Women

OP ED: The Texas War of 2021: The War Against Women

Pipa Powers, Contributor

At many points in history, women have been punished for simply existing as women, stripped of the ability to make decisions in regard to their own bodies. Texas Senate Bill 8 is simply the next mechanism in this tradition to suppress the rights of women.

On Sept. 1, 2021, the Texas Legislature passed the country’s most restrictive abortion bill yet – Senate Bill 8. Most restrictive abortion bills in the past have been struck down as examples of unconstitutional overreach by state legislatures in line with the precedent instituted by Roe v. Wade (1973). This landmark case established the right to an abortion free from excessive governmental interference. S.B. 8 has built-in clauses to circumvent a constitutional challenge.

Rather than relying on law enforcement to prosecute cases of “illegal” abortion, the bill relies on the willingness of ordinary citizens to carry out the law. Citizens act as vigilantes, in the sense that they take on the responsibility of filing civil lawsuits against any actors involved in performing an abortion. This serves as a mechanism to prevent a constitutionally-based lawsuit, since the state isn’t directly doing anything to violate the rights of women, allowing the law a better chance of holding up if challenged in court. This is already holding true, as indicated by the Supreme Court’s unwillingness to put an emergency stop on the law due to the fact that the state government itself is not violating the Constitution. 

While the Supreme Court voted to not strike down the law, the four dissenting justices spoke out against the impact of the majority’s decision. Notably, Justice Sotomayor referred to the law as being “flagrantly unconstitutional” and critiqued other justices for “ignor[ing their] constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.” Justice Stephen Breyer, one of the longest standing justices on the Court today, spoke out against the refusal to block the bill, calling it “very, very, very wrong.” Chief Justice John Roberts and Justice Elena Kagan also spoke out against the decision to not strike down the bill. 

The bill is already being targeted by federal judges in the lower courts. On Oct. 6, 2021, U.S. District Judge Robert Pitman temporarily blocked the enforcement of S.B. 8. However, TexasGovernor Greg Abbott and attorney Will Thompson in the Texas Attorney General’s Office quickly announced their intention to appeal the ruling to the Fifth Circuit Court of Appeals, notoriously one of the most conservative circuits in the country.

Accordingto Dr. Ellen Clayton, professor of law and health policy at the Vanderbilt University Law School, the Texas statute will most likely not be able to stand in the long term. While she acknowledged that the unpredictability of the situation makes it unfruitful to speculate what the court will do, she explained that, in order for the Texas bill to stand, the Supreme Court would have to strike down the Constitutional protections following from Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).Her position concludes that if the Supreme Court takes this case, they will be making a determination as to whether states can treat abortion as being illegal. While this is an important consideration, historically the Supreme Court has attempted to find the middle ground on more divisive issues. Thus, there are a multitude of potential outcomes in the decision-making and opinions of the justices when determining the legality of abortion.

The lawsuits filed by citizens penalize the doctors, nurses, and even Uber drivers who were “complicit” in the performance of that abortion. While signatory politicians, including Texas Senate President, House Speaker, and Governor Abbott, claim that they aren’t punishing women, the threat of penalties has resulted in clinics refusing to performabortions, rendering the procedure inaccessible. Doctors working for major abortion providers have spoken out against the ban, even claiming that they would continue to perform abortions to the fullest extent possible. However, many of them are choosing to obey the directives of S.B. 8 out of concern for their employees, practices, and licenses if their entire clinic is faced with legal action following the performance of an “illegal abortion.”

Governor Abbott and other proponents of the bill have maintained the idea that it is the duty of the state government to protect the lives of its citizens, considering those in the womb to be the most vulnerable citizens. This relies on two key assumptions. The first is that life begins at conception. Some pro-life stances have taken up a compromise position that life begins at the moment that the heart beat can be detected.The problem with this argument is that at the moment of conception, no new life is brought into being. All components of fertilization – the sperm and egg – were already alive prior to conception. There are many fertilized eggs that never grow into human beings, with the majority being expelled with menstrual flow. At that point, the pro-life argument prioritizes the protection of fertilized eggs over anything else.

Another key issue with the idea that life begins at conception is that the fetus is unable to survive outside of the mother. A fetus does not become viable until around 24 weeks, but up until that point the fetus is entirely dependent on the mother to grow and survive. If the fetus is not viable, it’s impossible to grant that fetus rights associated with personhood. In the context of anti-abortion legislation, this presents an issue because legal protections are being offered to a being that cannot be offered protections associated with being a person. At its core, women’s rights legislation should aim to protect the woman first and foremost, not an unviable fetus.

The pro-life argument also promotes ideas that the fetus lacks the ability to consent to the abortion. Fetuses also inherently lack bodily autonomy because they lack autonomy in the first place. A fetus also has no direct claim to protections because a fetus is not yet a full person, and rights are directly predicated on personhood. Working under the assumption that the fetus is a living human with the capacity to consent, this bill sacrifices the bodily autonomy of the mother. Protecting the bodily autonomy of an unborn bundle of cells that lacks its own bodily autonomy creates direct harm to the bodily autonomy of the mother. 

Following the idea that life begins at conception, the second key assumption that underscores the broader pro-life argument is that the duty to protect the fetus supersedes the duty to protect the mother. At six weeks, many individuals don’t even know that they are pregnant, and if they do, the maximum amount of time they could have known about the pregnancy beforehand is two weeks. However, many women do not know as early as four, or even six, weeks due to common fluctuations in the menstrual cycle caused by stress or irregular cycles. The burden is then placed on women to continuously purchase and take pregnancy tests any time their cycle may be slightly off, creating a massively unfair barrier. This gives women fourteen days to schedule the procedure, go to two clinic visits, as required by Texas state law, and carry out the abortion before facing potential charges. Since this time restriction imposes such a strict barrier, many women who would’ve considered abortion an option can never access that abortion. This means that in cases of rape, incest, or unwanted pregnancy,the mother is forced to carry the child to term because the Texas state government favors the rights of a fetus over the rights of mother.

This lack of access is what makes this bill, and other bills like it, a war against women. While a victim of rape cannot be sued by her rapist, a third party can sue anyone who aided in providing an abortion to a survivor of rape. When the Texas government placed the burden of proof that the abortion was lawful on the defendant in a civil suit, they made their stance on abortion access explicitly clear. The Texas government would rather a teenage victim of rape carry her rapist’s baby to term than allow women the freedom to control what happens within their own bodies. This becomes even more clear when examining the specific clauses of the bill. If a plaintiff is successful, they can be awarded $10,000, with no limit on the amount of lawsuits they can file. However, if the defendant wins their case, they cannot even recoup their attorney’s fees.

After the passing of the bill, many women recognize the extent to which this is an attack on their right to bodily autonomy. As a response, women are actively trying to take control of their reproductive healthcare, either by leaving the state or by attempting to put pressure on their local and state governments to advocate for a change in laws. In Mexico, where abortions have very recently become decriminalized, clinics are already preparing for women to cross the border in order to receive an abortion. Nearby states, such as Colorado and New Mexico, are also preparing for an influx of patients based on data showing a twelve-fold increase in the number of patients during the Texas abortion ban in March 2020 that accompanied a COVID-19-related executive order from Governor Abbott. 

The fight for women’s rights has persisted through every part of modern history. While women’s rights have progressed towards parity with their male counterparts, Texas Senate Bill 8 is a clear step backwards in the fight against the patriarchy. Ultimately, this law is not about protecting the lives of anyone – it’s about controlling the decisions of women.


Image Credit: “‘Abortion on Demand & Without Apology’ Protestors,” (unmodified) by Steenaire is licensed under CC BY 2.0