Since the Supreme Court’s decision of Roe v. Wade in 1973, establishing a woman’s right to an abortion as constitutionally protected, the Republican party, guided by the so-called “Christian” right, has made the undermining of that right its predominant task, with a single-minded focus unsurpassed by any other policy initiatives, including even cutting taxes. Because the direct victims of this relentless effort to restrict or criminalize the right to an abortion are always women, the oppressive nature of forcing women to bear unwanted children has been couched in disingenuous, high-minded religious dogma (“respect for life”) in an effort to disguise its inherent misogyny. What is occurring right now in the state of Texas dramatically shows that this devaluation of women through enforced control of their reproduction choices has now reached an inflection point of sorts, the natural culmination of a decades-long effort by religious conservatives, through the Republican party, to seize control from women over their own bodies.
Unlike the hundreds of anti-choice laws passed by Republican state legislatures in this country up until this year, the Texas “fetal heartbeat” law which criminalizes any abortion performed after six weeks, or when a supposed “fetal heartbeat” may be detected, does not rely on the state for its enforcement. Rather, the Texas law provides a mechanism allowing private citizens opposed to abortion to take matters into their own hands against women they deem unworthy of bodily integrity, by specifically targeting those who assist such women in terminating their unwanted pregnancies.
As explained by Harvard emeritus professor of constitutional law Laurence Tribe and University of Texas law professor Stephen Vladeck, writing for the New York Times:
Not only has Texas banned virtually all abortions after the sixth week of pregnancy (a point at which many women do not even know they’re pregnant), it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue their provider to try to stop it, but if you succeed, you’ll be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.
The transformation of the anti-choice movement with this new law permitting private citizens to terrorize other private citizens based on their own interpretation of Christian dogma represents a significant escalation in the efforts by so-called Christians (mostly of the white, Evangelical variety but involving many conservative Catholics as well—among others) to impose their theocratic, misogynist beliefs upon women. By allowing any private citizen to file such risk-free lawsuits against whoever they believe is assisting in terminating a pregnancy, the Republican-controlled Texas legislature intentionally sanctioned a form of vigilante justice to be meted out by the religious right against women and those institutions and individuals who support them.
Sabrina Tavernise, who authored the Times initial reporting on the Texas law last week, highlighted its implications.
“If the barista at Starbucks overhears you talking about your abortion, and it was performed after six weeks, that barista is authorized to sue the clinic where you obtained the abortion and to sue any other person who helped you, like the Uber driver who took you there,” said Melissa Murray, a law professor at New York University.
As Tribe and Vladeck explain, the reason the law was drafted this way was to try to forestall constitutional challenges—normally only viable when the state is the actor—before the law takes effect. By (in effect) deputizing private citizens, the law cannot, in theory, be challenged as an impermissible, unconstitutional state action before its implementation. Tribe and Vladeck acknowledge that in this respect, the law may be quite effective, “set[ting] an ominous precedent for turning citizens against each other on whatever contentious issue their state legislature chose to insulate from ordinary constitutional review.”
This is because legal challenges to a law’s constitutionality invariably list a state official as a defendant, in order to allow judicial review of any particularly loathsome law before it is used to inflict harm. There is no recognized “defendant” to sue here for purposes of making that challenge because the law simply permits any private citizen to sue. The ultimate purpose of the Texas law (scheduled to go into effect on September 1, 2021) is to embroil abortion providers and others in hundreds of expensive lawsuits brought by other Texas citizens, thus pushing them into bankruptcy.
Its other purpose is to instill fear; as several reproductive services and abortion providers put it in in their complaint seeking an injunction against the law, it essentially “plac[es] a bounty on people who provide or aid abortions, inviting random strangers to sue them.” The providers’ attempt to secure an injunction relies on the untested premise that although no specific state actor can be named, governmental organizations involved in enforcing the law can still be named as defendants in an effort to stop it.
As Tribe and Vladeck point out, in addition to the obvious deterrent impact on women seeking to terminate their pregnancies, this law, if permitted to stand, would spawn hundreds of copycat laws in other states, not only targeting abortion, but pitting citizens against other citizens in matters as far-reaching as gun control and environmental regulation. In other words, it is a recipe for social chaos. In that vein it’s worth noting that nowhere does the Texas law seem to contemplate the reactions likely to be elicited against such private citizens who choose to try to impose their beliefs on strangers by virtue of its provisions. Legal experts have also weighed in, saying that the law makes a “mockery” of the traditional legal system that requires parties to have suffered actual damages before bringing suit.
One of the distinct hallmarks of The Handmaid’s Tale is the overwhelming paranoia of the society it portrays, specifically the fact that the religious dictates and government edicts governing social interactions are enforced through widespread fear and social distrust. That distrust is deliberately and carefully cultivated and maintained so that citizens feel compelled to inform on one another, whether out of self-preservation or religious fervor, just as this Texas law is intended. Ultimately, that fear and paranoia are the most efficient tools to fulfill the government’s true aim, which is simply maintaining its own power.
The corollary lesson of both the book and the TV series is that all of the rights which people take for granted can be whisked away in a moment by an unscrupulous, cynical government which learns how to stoke its citizens’ worst impulses through a toxic mixture of religious zealotry and government power, particularly when a national crisis avails it of the opportunity.
While it is often problematic to cite dystopian fiction as an indicator of current political trends, the fact that Atwood’s novel was directly inspired by the anti-choice rhetoric of the Reagan era and the accompanying backlash by so-called ”Christian” groups against women’s rights, particularly reproductive rights, exempts it from that category of fiction deemed “science fiction.” As Atwood herself has stated, the work is actually “speculative” fiction, but in the decades since its publication, the future as imagined by Atwood has come closer and closer to established fact, particularly as a Supreme Court now transformed by an overtly anti-choice conservative majority stands poised to overrule Roe or thoroughly gut what protections it still provides for women.
With this law, Texas, and the Republican party which controls it, have brought us one step closer to that future.