At midnight Sept. 1, the constitutional right to an abortion all but vanished in Texas. A state law banning the procedure after six weeks of pregnancy took effect and quickly cleared an initial hurdle at the U.S. Supreme Court.
That turn of events served as a call to action for Florida’s Republican lawmakers, who have already vowed to pass similar legislation — and should be a dire warning for Floridians who care about women’s freedom of choice.
Ignoring legal precedent in place since 1973, Texas lawmakers last spring passed what’s known as a “heartbeat bill” — a prohibition on abortions once a fetal heartbeat is detected. That’s usually around six weeks — before many women know they’re pregnant.
The law, which contains no exception for rape or incest, amounts to a near-complete ban since more than 85% of Texas abortions happen after the sixth week of pregnancy. The measure went into effect amid urgent legal challenges, and the U.S. Supreme Court, led by a new conservative majority, refused to block it while appeals play out. The Texas law now stands as the most restrictive in the nation.
With the landmark Supreme Court decision in Roe v. Wade in place, guaranteeing a woman’s constitutional right to an abortion, conservative politicians in recent years have cleverly and effectively attacked the issue from the standpoint of access.
Thus abortions, while “legal,” have become increasingly difficult to obtain — which is exactly the point. Florida lawmakers have happily joined the fray, requiring women to wait 24 hours to get an abortion and visit the doctor twice, a medically unnecessary hardship on poor and rural Floridians. That law is not in effect while it moves through the courts, but another measure imposes frivolous regulatory requirements on clinics and doctors. Those statutes and similar ones in other states forced many clinics to shut down — also the point.
But the Texas law stands alone, making harassment and surveillance of women seeking abortions standard operating procedure. Instead of charging state officials with enforcement responsibility, it empowers ordinary citizens to file a civil suit against anyone who performs an abortion and anyone who “aids and abets” it.
Here’s what that means in practice: To file suit you don’t have to live in Texas, know the woman seeking the procedure or show any injury from it. (Anti-abortion groups have already set up hotlines soliciting tips about women pursuing now-illegal procedures.) As for the aiding and abetting piece, that can apply not only to doctors but also to clinic staff, a person who loans a woman money for an abortion and even the person who drives her to the appointment. Plaintiffs who sue are entitled to $10,000 and legal fees if they win. Defendants, if they win, are not entitled to legal fees.
Ironically, the patients themselves can’t be sued. Because why would a woman be a party to a case governing her body? The misogyny rippling through this law is staggering.
The five conservative Supreme Court justices who refused to block the law acknowledged they were not ruling on its constitutionality. To that point, dissenting Justice Sonya Sotomayor called the Texas measure “flagrantly unconstitutional” and wrote, “it cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
But don’t imagine other states won’t try. With the Supreme Court’s announcement just hours old, lawmakers in Florida vowed to take up similar legislation here. Many of the Republicans in the state Legislature can’t resist an opportunity to trample on women’s rights to make decisions about their own bodies.
The abortion ban in Texas endangers women’s lives by impeding their ability to obtain an often critically needed procedure and by exposing them, their families and their health care providers to harassment and legal jeopardy. If those threats seem far away or abstract, think again.
This editorial was published Sept. 2 in The Tampa Bay Times.