When does human life begin? At conception? At birth? Does it matter where it begins if it places someone who is decidedly alive in danger? What if they aren’t in danger? If you haven’t been living under a rock for the past twenty years, then you’ve heard these questions, these debates, this discourse.
A woman’s access to abortion is one of the most controversial topics of discussion in the U.S, and the issue has surfaced quite a bit in legislation. The latest iteration lies in the Texas law SB8, which effectively bans abortions after six weeks, regardless of cause. But in order to understand how we got here, we have to go back.
The impact of court case Roe v. Wade in 1973 is extremely well known: it gave women the constitutional right to receive abortions. However, this ruling did not come without pushback, from the Catholic Church in particular, which had a large influence over Northern states. Evangelical churches, more prominent in Southern states such as Texas, were originally not all that outspoken on the matter but have become progressively more “pro-life,” the term coined for people who are anti-abortion and anti-choice.
This trend influenced the state legislature, which became increasingly conservative during the 1990s, and has been led by Republicans since 2003. For years, Texas legislators have been subtly chipping away at abortion access, by doing things such as putting more funding into places that give alternatives to abortion and making abortion clinics less accessible. However, this is the first time anything so drastically anti-abortion has been passed. Of course, other deeply red states have attempted to pass 10-week bans and 15-week bans and so on, but all have come under fire for their attempted overturning of Roe v. Wade. So what makes this so different?
To reiterate, Roe v. Wade deems it unconstitutional for the government to get involved with a woman’s abortion until after about the first trimester. This is usually the reason why laws attempting to control abortions always come under fire, but the Texas legislature has managed to find a loophole. SB8 explicitly bars government officials from getting involved if they see an abortion happening, instead directing the power to the people. Essentially, any citizen who sees an abortion going on after six weeks of conception has the right to sue the person who “aids or abets it,” which means anyone who performs the procedure or helps to perform it. That last part is another important loophole, as the law is designed such that the woman getting the abortion is not directly punished, but rather the people performing it on her.
Of course, this leads to a domino effect that we have been seeing where abortion clinics have been shutting down rapidly, forcing most women to go out of state if they would like to get one. Those who sue the clinic get $10,000 if they win, effectively creating a sort of “bounty” for those on the lookout for places practicing abortions.
Despite this, there is really only one high-profile example of the law being enforced so far. An abortion doctor named Alan Braid publicly came out to state that he was still performing abortions as an act of protest against the law, and was sued by a man named Oscar Stilley in Arkansas. When asked, Stilley, an ex-lawyer convicted of tax fraud, claimed that he was pro-choice but wanted the money. However, the case has not gone to trial so far, and we are not sure if it ever will.
The vagueness of “aids or abets,” while probably necessary in order for the law to get passed, is also another obstacle to abortion, as this could mean anything from only the doctor who performs it to the person who drove the woman to the abortion. More importantly, people are generally being discouraged from taking any sort of action until the Mississippi case, Dobbs v. Jackson Women’s Health Organization, which the Senate will have oral hearings on, is done and the results are announced. The case starts on December 1st and deals with a challenge to the 2018 attempted law that banned abortions after 15 weeks, except in the case of medical emergencies. This is a stark contrast to the approximately 24 weeks given by Roe v. Wade, and was blocked multiple times. However, with the conservative stronghold on the Supreme Court due to President Trump’s appointees, there is a chance that this could be used to overturn Roe v Wade. The outcome of that trial may determine the future of abortion rights in America.
President Joe Biden has loudly vocalized his disapproval of the law, deeming it “clearly unconstitutional.” His Department of Justice sued Texas for the law.
The legacy this case will have is already being seen in rapid motion. Florida has already introduced a copycat law, and this tactic of utilizing private citizens as semi-bounty hunters will no doubt be used as a way of bypassing federal laws the leading state deems unsavory.
Republicans have actually used this tactic before in regards to transgender issues, both Florida and Tennessee issuing laws where someone can sue a school if they find a trans person using school bathrooms or engaging in school sports respectively.
Such laws also redefine and create a dramatic expansion of what a civil lawsuit could possibly entail. In most civil lawsuits, the person suing (the plaintiff) has allegedly been directly harmed by the defendant, but the Texas law means that anyone has the standing to start a civil lawsuit. We are treading on unfamiliar territory as we speak, and the long term impacts may be a completely different legal landscape.