Texas just implemented a grotesque anti-abortion law, effectively banning abortion after around six weeks of pregnancy in defiance of constitutional precedent.
This is not the time for resignation. This is not the time to stick a fork in Roe v. Wade. To quote the late great Texan Molly Ivins, this is the time to “raise hell, big time.” Because maybe, just maybe, a sustained outpouring of opposition could restore reproductive freedom in Texas and protect abortion rights across the country.
The Texas law, known as Senate Bill 8, went into effect on September 1. Later in the day, the U.S. Supreme Court rejected the appeal for an emergency stay in a 5–4 vote. This deliberate inaction must be viewed in concert with the Court’s action four months ago, accepting review of Mississippi’s 15-week abortion ban. Oral arguments in Dobbs v. Jackson Women’s Health Organization will be heard during the 2021–22 term with a ruling expected in late June or early July.
Needless to say, the 5–4 vote looks ominous. But it could be a way for the Court to dip its proverbial toe in the water, and see how a world without Roe feels.
If progressives are too distracted by other issues, and the new Texas law is met with only modest grumbling, then potential swing votes in Dobbs may feel no imperative to swing. But if Texas is embroiled in unabated chaos and controversy, then even some anti-abortion justices may worry that swiftly wrecking Roe will wreck the Court as well. If the country no longer views the judicial branch as an independent pillar of constitutional stability, the progressive push to pack the Court could catch fire. Fear of that scenario could slow the Court’s roll.
Implementation of the Texas law is sure to be insane and cruel. Instead of placing the responsibility of enforcement on the state’s public officials, the law encourages any citizen—inside or outside Texas—to sue abortion providers or anyone else who helps a person get the procedure. Winning plaintiffs get $10,000 plus legal costs from the defendants. Winning defendants get nothing. As the attorney-writer Jay Willis explained on Twitter, “If you give a friend money, or file an insurance claim, or are an insurance company who pays a claim, you might be a target.” Since “intent” to provide or aid an abortion is now illegal, Willis noted, “this is an open invitation to anti-choice activists to file lawsuits against everyone they don’t like and try to drown them in frivolous litigation.”
Recognizing that the new law doesn’t prevent people from getting abortion pills, Texas Republicans are speedily moving another bill to prevent doctors from dispensing such medication after seven weeks of pregnancy, as well as banning mail delivery.
We know people will suffer because of these laws. But we don’t know how much media attention that suffering will receive now that Texas is a test case.
This a state trending blue, with an electorate evenly divided over abortion. Surely the pro-choice half will now mobilize. But state and local organizations will need ample resources not only to help those in need to find access to abortion—either across state lines or in defiance of the Texas law—but also to generate sustained media attention. Planned Parenthood of Greater Texas, Avow (formerly NARAL Pro-Choice Texas), the Lilith Fund (and its “Hype Squad”), and all the Texas organizations in the National Network of Abortion Funds will need all the financial help they can get today, and every day this monstrous law is on the books. The harder they fight, the more the Court will be deterred from repealing Roe.
As I argued in May, the aggressive push by Republican governors and state legislatures to pass draconian abortion bans was electorally foolish, especially in bluing, increasingly college-educated Sun Belt states like Texas. But that political silver lining for pro-choice Democrats doesn’t erase the fact that the Court could kill off Roe before the 2022 midterms. To avoid that calamity, the Court needs a glimpse of what repealing Roe will reap—in the case of Texas, it’s a Handmaid’s Tale–meets–Dog the Bounty Hunter hellscape of snitches and litigants trampling on basic rights.
The Lone Star State is the culture war front where the abortion battle should be fully joined. Summon the spirit of Molly Ivins, and raise hell.