As of midnight this morning, 85 percent of abortions in Texas are now illegal.
You read that correctly: Not only has the state of Texas banned all abortions after six weeks of pregnancy — when most women don’t even know that they’re pregnant — but, due to the deliberately convoluted way in which way the law was written, no court has stopped it from going into effect. The Supreme Court, which on Monday received an emergency appeal to prevent the law from taking effect, has, so far, done nothing.
So, that far-in-the-future, Handmaid’s Tale day when the Republican Party bans almost all abortions? That day is today.
Now, the new law, referred to as S.B. 8, obviously runs afoul of Roe v. Wade and 50 years of subsequent precedent. At some point, it will presumably be tied up in court, and that point may come very quickly.
But Texas Republicans, who have also just passed the most sweeping voting restrictions in the nation, crafted S.B. 8 in an unusual, and frankly terrifying, way. Rather than charge state officials with the responsibility to enforce the law, S.B. 8 empowers vigilantes to sue anyone whom they believe to be “abetting” a woman in obtaining an abortion, in the hopes of obtaining $10,000 in “damages.”
In addition to a horrifying throwback to romanticized notions of “Texas justice,” this provision makes it hard to get an injunction preventing the law from taking effect. Who, exactly, is a court supposed to stop? No sheriff or attorney general will be arresting doctors or nurses (or, for that matter, moms who drive their daughters to a health clinic). And whoever might now file suit hasn’t done so yet. From a legal point of view, it’s not clear that there’s a live controversy until someone actually does.
Again, that may happen as soon as today. And the moment a court official stamps one of these ridiculous lawsuits, that’s enough state action to warrant an injunction. S.B. 8 will then, like the raft of anti-abortion laws floating through the court system, surely be stayed while the litigation proceeds. (In particular, in case you forgot, the Supreme Court is poised to consider a ban on abortions after 15 weeks of pregnancy passed by Mississippi, and, given the makeup of the Court, is quite likely to uphold it, chipping away at Roe while leaving the precedent intact.)
But a tremendous amount of damage has already been done.
First, there’s the sheer reality that Texas Republicans have just banned the vast majority of abortions by means of a legal technicality: According to hospital data cited in the litigation, fewer than 15 percent of abortions take place prior to the six-week mark. You probably didn’t know this when you went to sleep last night, but you’ve woken up in a world in which 12 million women do not have the right to control their own bodies — at a time when the average embryo is the size of a grain of rice.
Second, there’s the radically anti-democratic nature of enabling every anti-abortion activist to become a potential bounty hunter. Radical anti-abortion activists have shown themselves to be capable of terrorism, including murder. They are religious fanatics who have assaulted, harassed, and even killed those they believe to be “killing babies.” Many are self-styled “rangers.” And now there’s a ransom on every clinic, doctor, lawyer, volunteer, or family member who helps (or even intends to help) a woman obtain an abortion. Does anyone believe that this won’t lead to violence?
Third, for however long this ban is in effect, it will hamstring abortion providers. Indeed, it already has. Before the law went into effect, the Whole Woman’s Health clinic in Fort Worth, Texas reported that women were rushing to obtain abortions while they still could, tweeting, “We have staff and doctors providing abortions in Texas — still at this hour — and they are all in to provide care until 11:59 tonight. Our waiting rooms are filled with patients and their loved ones. Right now.”
As of this morning, that clinic is closed until further notice. As are, it appears, most abortion providers in Texas. With the threat of harassment, litigation, fines, and violence, they have all simply shut down. There is nowhere for women to go.
Meanwhile, Whole Woman’s Health reported, “The anti-abortion protesters are outside, shining lights on the parking light. We are under surveillance.”
Finally, now that this outrageous tactic has already succeeded in temporarily shuttering abortion clinics, we can expect a lot more of it from Republican-led states. Just reflect, for a moment, on the assault on constitutional rights that S.B. 8 represents. In court filings, no one argued that S.B. 8 is constitutional — the state of Texas is quite aware that it isn’t, at least for now. Texas only argued that it’s unreviewable.
So, on the one hand, women have a right to control their own bodies, but on the other, states can at least temporarily take that right away, cause clinics to shutter, and threaten women with harassment and lawsuits. Is this even a constitutional right anymore? Or are we already living in the dystopian future that we’ve feared would come to pass?