6 Reasons Texas’ New Abortion Law Will Probably Be A Dumb Mess
You’ve presumably heard of Texas’ new abortion law, which combines the severity of one of the meaner Tsars with the laziness of a deadbeat dad who asks you to fetch his morning beer while he sprawls on the couch. But if your daily news takes you in a more comic book focused direction, the Texas Heartbeat Act allows lawsuits against abortion providers if they perform an abortion after cardiac activity is detected. That’s around six weeks of pregnancy, which is often before women even realize they’re pregnant. The law, which a judge temporarily blocked late Wednesday night, isn't just incrementally worse than other abortion restrictions. Instead, what you've got to realize is ...
This Is A Law Like No Other
Aside from having the country’s strictest timeframe, the law is unique in that it outsources enforcement, allowing anyone in America to sue a Texan who performs an abortion or helps an abortion happen, whether the Texan works at a clinic or just drives a patient to one. While state employees legally can’t enforce the law, successfully suing an abortion provider could reward a private citizen with at least $10,000, and there’s also an anonymous tip line if you feel like more low-key snitching.
The law exempts a narrow band of medical emergencies, but not pregnancies resulting from rape, because Governor Abbott, in his esteemed wisdom, has argued that six weeks is plenty of time for a rape victim to get their shit together. Besides, he intends to “eliminate all rapists from the streets of Texas by aggressively going out and arresting them,” presumably spelling an end to all of Texas’ famous rapist clubs.
Aside from incentivizing the worst people you can imagine, relying on an army of busybodies to enforce the law muddies the question of whom could be sued to challenge it on a constitutional basis. But there are also some far more direct consequences to turning a state into a panopticon as imagined by Next Door users with strong opinions on what minorities are planting in their gardens.
Don't Count On It Staying A Joke
We don’t want to be hyperbolic. So far, the tip line was immediately brought down by spam, while the only legal case has been more comical than oppressive. A San Antonio doctor wrote a Washington Post essay announcing he’d performed an illegal abortion, prompting two lawsuits. One was a self-confessed attempt at easy money from a disbarred and incarcerated loon, while the second was from a pro-choice lawyer trying to force the court to test the law’s legality. An anti-abortion group called them “self-serving legal stunts,” then vanished in a puff of irony.
But there’s only been one case because no abortion provider wants to risk drowning in legal challenges. Life as a Texan woman’s health clinic employee sounds hellish right now, as they face surveillance from protestors, threatening phone calls, and fake patients trying to bait them into breaking the law. And, in theory, litigants could subpoena a vast array of data, from search histories to location data to the information in period tracking apps, because we all carry the world’s biggest narc in our pockets.
History tells us that encouraging mass citizen surveillance just plain sucks, both morally and because it induces the kind of headaches you get from watching people argue on Facebook about whether installing a neighborhood basketball court will encourage “urban” crime.
Informants Have Their Own Dumb Reasons For Snitching
One of my favorite facts about the Gestapo (of which I only have two, because it’s weird to have too many favorite facts about the Gestapo), is that the supposedly all-seeing secret police only initiated about 15% of their own investigations. The rest were prompted by public tips, and a major part of the job was filtering out all the crap people invented to settle grudges. Officers were warned to be especially wary of people denouncing their spouses, because accusations of disloyalty were often a pretext to enable affairs. Most public tips didn’t lead to court cases, and most court cases fell through, leading the overworked Gestapo to find “denouncers” more annoying than the state’s official enemies.
If you prefer your infamous secret police to be of the red variety, the Stasi had about 189,000 citizen informers motivated by ideology and jealousy to snitch on family and acquaintances. One West German informant sunk her ex-husband’s plan to get his lover across the border, and another scuttled escape plans because she feared that East Germans would sneak in and take all the good jobs.
Living in a world where your every action could be reported was scary, but also annoying. People would be reported for drinking too much, receiving too much Western mail, wearing the wrong clothes, owning the wrong books, preaching the wrong opinions in church, missing too many classes, or receiving too many attractive single visitors. While the communists initially ran internment camps nearly as bad as the Nazi ones they liberated, the consequences for the denounced were usually more mundane. Get caught stepping out of line and your travel privileges would suddenly be revoked, or the promotion you seemed destined for would mysteriously vanish.
People weren’t pressured or legally obligated to snitch, they just did it because they could. Maybe they believed in the system, or maybe they wanted to keep it from turning on them. The threat of being arrested or even just inconvenienced because your neighbor didn’t like the cut of your jib was enough to make people self-censor and, again, horrific human rights abuses aside, enabling the sort of people who leave you stern letters for using the wrong color Christmas decorations creates a society that’s a sheer pain in the ass to navigate.
Ironically, in 1972, East Germany passed what were then Europe’s most liberal abortion laws. So no, the Gestapo and Stasi are not a perfect analogy, and yes, I realize that by invoking them I risk banishing myself to internet argument hell. But America has actually used a bounty system before, and ...
When America Tried This Before, It Didn't Turn Out So Hot
Back in 1850, the Fugitive Slave Act gave citizens a bounty for capturing and returning escaped slaves. And everyone who didn’t profit from slavery hated it.
Bounty hunters billed the government for their travel and food, often padding their expenses because slavery and fraud are a profitable combo for the immoral. Citizens happy with slavery worried about getting roped into dangerous and time-consuming hunts, because declining a policeman’s request for help could subject you to a heavy fine. Aiding an escaped slave exposed you to a lawsuit and jail time, presumably prompting a lot of stern op-eds.
It was kind of a hot topic. Protests were staged, courthouses were stormed. Northerners once indifferent to slavery thought the law went too far, or worried that Southern slaveholders were getting too much power. Abolitionists suddenly had a major rallying cry and used their new influence to free recaptured slaves with money or force, while rich Northerners endorsed the law to protect their business interests. An already divided country grew more divided, and then a few years later some other historical event you’ve probably heard of went down.
Again, we don’t want to get hyperbolic. So far, the only evidence that organized bounty hunters are trying to cash in on Texas was actually a fake subreddit created to stir up drama. But history has told us over and over again that encouraging citizen surveillance and bounty hunting is stupid and awful. If the slave example is too serious, recall the time that a bounty on cobras created a cobra-breeding industry.
Outlawing Abortion Never Works Out So Hot Either.
Ye olde abortion laws, like the one Alabama had on the books in the 19th century, gained support partially because immigrants, freed slaves, and—worst of all—those nefarious anti-American Catholics, were having more babies than upstanding white Protestants. It was hoped that removing abortion as an option for the genteel would reverse the trend, and enforcement was often nasty and invasive. But women still got abortions; they just got them from providers so sketchy and ill-qualified that entire hospital wards specialized in post-abortion sepsis. The medical profession evolved to pro-choice not long after.
These days, you don’t necessarily have to meet a real-life Dr. Nick in a back alley. Texans have been circumventing laws about buying abortion-inducing pills online. But while there’s surely no precedent for pills ordered on the internet going awry, strict abortion laws have never really stopped abortions so much as they’ve punished women for having them, through injury or death at the hands of an incompetent. The United States, incidentally, has the worst maternal mortality rate among developed countries, Texas’ rate is above the national average, and both are rising.
Worldwide, abortion laws are generally becoming more liberal, while global abortion rates are down thanks to improved family planning initiatives, easier access to contraceptives, and decades of improvements to video games. Abortions happen at about the same rate in countries where they’re restricted and countries where they’re not, but the former are far more dangerous. Illegal abortions in the developing world often make those in America look pleasant, but still: the abortions are going to keep happening, whether you want them to or not.
But while the world is generally accepting that and embracing safe abortion, America is trending in the opposite direction. While Texas has been getting all the attention, it’s only one of 17 states to tighten up abortion laws in 2021. The last few years have seen a rash of anti-abortion bills, and while the harshest were blocked by federal courts, getting an abortion in a state like Alabama is still no picnic. Patients must visit a government counselor who’s legally obligated to discourage them, then visit one of the state’s three remaining and heavily regulated clinics, because Republicans love burdensome government red tape as long as it’s used to choke the poor. Once the clinic has performed the mandatory ultrasound and made the mandatory offer to view the image, patients can have an abortion that state health insurance is legally barred from covering.
While Texas’ bounty system is currently facing a challenge, it was conceived to help the state avoid the obvious legal path that struck down tough abortion laws elsewhere. Florida, the state that never saw a bad idea it didn’t love, is currently trying to emulate it, and other red states are expected to follow suit. Texans, while split on the state’s new level of abortion access, generally seem to hate the fact that non-Texans can try to cash in with the bounty system, but the law is the law and aggressive new gerrymandering efforts are hoping to keep it that way.
Meanwhile, pro-choice activists have been pushing cities and states to expand abortion access. Virginia, for example, now allows state health care to cover abortions, while Connecticut cracked down on deceptive anti-abortion advertising, and Portland established an abortion access fund. So it’s not all bad, but abortion is being pitched as the next great culture war in the same way that ominous drumming in movies foreshadows a horde of ravenous orcs.
If It's "Just" A Culture War, That Might Make It Even Worse
Public opinion on abortion hasn’t changed much since Roe v. Wade supposedly split the nation atwain—support for legality in all or most cases has always hovered around 60%, while only about 20% of Americans support total bans—but attempts to portray it as an existential crisis have become a hell of a lot more common.
Some of that is because America’s religious left has lost its influence, while right-wing Protestants have found an ally by begrudgingly accepting that conservative Catholics aren’t secretly plotting the country’s downfall. But while there used to be pro-choice Republicans and pro-life Democrats who appealed to voters equally driven by class concerns, those are a vanishing breed. The former are practically unicorns, if unicorns were called crypto-communists by Glenn Beck.
Why the change? Well, there’s a history lesson there too. As the attempts to besiege school board meetings for the authoritarian thought crimes of acknowledging slavery and disease may have taught you, Republicans are leaning hard into waging a cultural forever war in lieu of having, like, ideas. America never really finished fighting its culture civil war, but the battleground shifted and became more existential, and American conservatism has always done better with fearmongering warnings about a certain way of life being extinguished than it has suggesting tax policy.
And so attempts to effectively ban abortion join attacks on LGBT rights and the elimination of concealed carry restrictions, because an armed society is a society politely telling pregnant women and gay kids to go screw themselves in the name of freedom.
So brace yourselves for many, many more laws like there are in Texas, where history offers us so many red flags that we could give a bull a heart attack. It’s going to be obnoxious and stupid and hurtful. Hopefully it’s also a death rattle before pissed off activists send all these awful ideas back into the hateful oblivion from which they spewed.
Mark is on Twitter and wrote a book.
Top image: Jno.skinner/Wiki Commons