Starting from the latest news, Yasmine Ergas explains how the Texas Heartbeat Act creates a scorched earth around any woman who might attempt to, or has had, an abortion.
“The legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade… that prohibit and criminalize abortion unless the mother’s life is in danger”. So begins the Texas Heartbeat Act, with a defiant affirmation that the constitutional rulings of the Supreme Court have never been implemented in the lone-star state - and the suggestion that they are not its law. The intent of the Texas legislature could not be clearer: the virtual, and unconstitutional, elimination of legal abortion. But its effects go far beyond abortion; they herald an informant society permeated by fear.
Texas might have chosen to exacerbate the draconian limits it has already applied to women’s ability to legally and safely interrupt their pregnancies by incentivizing citizens to report violations to public officials. It would then have assumed direct responsibility for the enforcement of its own laws, and the enforcing officials could have been sued by abortion rights defenders. Instead, the Heartbeat Act provides for civil suits, and bars any enforcement action by state agents. The plaintiff, potentially any person even with no direct connection to the abortion that has been performed, sues the defendant, potentially any person who has performed or has aided or abetted the abortion. The reward for a successful suit is $10,000 plus costs and attorneys’ fees, payable by the person who has been sued. Deputizing civilians, and providing them ample margins of protection from countersuits while insulating the state’s coffers, the Texas legislature has circumvented the threat that the normal dialectic between law-makers and society has historically allowed.
The majority of the U.S. Supreme Court - reshaped by Donald Trump - has acquiesced in this clever mobilization of vigilantism. In a sparsely worded decision, the Court cited the “complex and novel antecedent procedural questions” that the law presented, but chose not to address them. Dissenting Justice Sotomayor described the Act as a “breathtaking act of defiance - of the Constitution, of this Court’s precedents and of the rights of women seeking abortions in Texas”. “It cannot be the case” she wrote, “that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
Outsourcing state responsibility to private actors is a long tradition with sometimes nefarious consequences. The growing use of private contractors in war, for example, has raised questions about the responsibility of the governments that employ them for the war crimes they commit. International lawyers have worked for decades to develop doctrines that prevent precisely the kind of evasion of accountability that Texas has now (at least temporarily) achieved. “Stand-your-ground” laws, including in Texas, effectively delegate the use of force to private individuals - with consequences that can be disastrous for justice. For women, the privatization of force evokes particular nightmares.
Most violence against women occurs at the hands of private actors. The spike in domestic violence associated with the Covid-19 pandemic has confirmed that, for many, private life - with the private actors by which it is populated - is a space of danger, not safety. Once upon time, the state was allied with those actors. Husbands were shielded from accusations of raping their wives. Married women could be sued for adultery; their husbands could not. Corporations were not responsible for the sexual harassment that occurred in the workplace, and that they may have countenanced. The use of force to discipline women was considered a private affair.
But such private power rests on delegations of public authority. The state may be hidden, but it has not withered away. Women have struggled to shift the historical alliance between the state and the private actors that deprived them of their own autonomy and self-determination as embodied human beings. The negation of that autonomy is, of course, central to Texas’ Heartbeat Act. That is why Justice Breyer, in dissenting from the Court’s decision, recalled that a “State cannot delegate a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”
The ostensible targets of this private veto power are not women themselves. No woman will be denounced for having had an abortion under the Heartbeat Act. Taxi drivers and health care clinics, aunts who open their purse-strings and nurses who provide an address, may all be sued, whether or not they knew that the woman with whom they engaged was using their help to have an abortion. It may be that in the Texas legislators’ febrile imagination, women are the objects of everyone else’s actions but never the subjects of their own agency. Most likely, this is just another ploy to deflect constitutional challenges: Texas may claim that its law does not contradict the Supreme Court rulings that affirm a woman’s right to make decisions over her own pregnancy at least until viability because she is not the direct target of its vigilantes’ actions. That argument - and, indeed, the entire law - has now been challenged by the U.S. Department of Justice, which is seeking an injunction to prevent its enforcement.
The Department of Justice’s action has yet to succeed. In the meantime, the Heartbeat Act is the law of Texas. Like laws that criminalize everyone involved in engaging sex workers but not the workers themselves, the Heartbeat Act creates a terra bruciata around any woman who might attempt to, or has had, an abortion. This scorched earth policy punishes, first and foremost, young women and women of color, women with limited access to financial resources and with limited capacity to circumvent the law by discretely leaving the state.
We will see many more hanger-induced deaths, and we will note spikes in maternal mortality, all correlates of the illegality of abortion. Hungry spies will chase abortion-seekers, so that they may sue their putative accomplices. Once, they might have banged on the doors of Planned Parenthood and women’s health clinics where abortions were being performed; but those services have now been ended. And so the spying hordes will whisper to each other about women overheard vomiting; track travel agents selling tickets to young women; note pharmacists whose female clientele hovers around childbearing age; scour not so-securely sealed medical records to find physicians and others performing DNCs or stemming hemorrhages, and, of course, follow threads on social media where the words “pregnancy”, “abortion” or more simply “trouble” appear.
The actions that can betray a pregnancy and its termination are manifold. Abortion rights have been defended in the United States as rights of privacy. What Texas has just done is to strip women and, with them, an entire society of privacy. And, with that, the lone-star state has become the State of Fear.
