What just happened in Texas is terrifying — not just for those who believe in the right to an abortion, but also for those who care about the rule of law, and democracy.
And, almost certainly, its reverberations will be felt here.
The law that took effect Wednesday in the Lone Star State put a near-total ban on abortions there. It prohibits abortions after six weeks, which is before most people even know they’re pregnant. It will drive those with means to get abortion care in other states. And it will force those who can’t afford to seek help elsewhere to carry their unwanted pregnancies — including those resulting from rape or incest — to term. Or to end them in dangerous ways.
The prohibition collides with long-settled law establishing a constitutional right to an abortion up to at least 22 weeks. But instead of blocking the Texas abomination, the US Supreme Court refused to immediately grant an emergency request to stop it, effectively winking at zealots in other states who will now push equally draconian measures. That’s what happens when you have a bench dominated by hand-picked throwbacks happy to upend legal conventions when it suits their causes. Abortion rights activists have been warning for years that this is where we were headed. Too many people refused to acknowledge it — looking at you, Senator Susan Collins — and now here we are.
“We knew this was coming when Trump was elected,” said Rebecca Hart Holder, head of NARAL Pro-Choice Massachusetts. “This has never been some far-off danger — this is an imminent threat right now.”
Massachusetts has strong laws protecting abortion rights, and the court’s shadow docket decision does nothing to change that. Unless the majority of conservatives on the Supreme Court put the kibosh on the Texas travesty and its kin, this state will increasingly become a destination for those seeking safe and legal abortions as more and more states veer back to the dark ages.
But the abortion ban, appalling as it is, isn’t even the most disturbing part of this sick law. In an effort to duck legal challenges, the law explicitly prohibits state officials — who would be the targets of lawsuits — from enforcing the ban. Instead, it deputizes any private citizen to sue anyone who they believe has performed an abortion after six weeks, or “aids and abets” it. Or anyone who “intends” to do so. That includes doctors, nurses, receptionists, those who help pay for the procedure or accompany or give patients a ride to the clinic, among others. Not only that, but the law entitles these vigilantes to at least $10,000 per abortion plus legal fees if they win, effectively dangling bounties before anti-choice activists.
So, the law does an end-run around a legal system that is supposed to be a co-equal branch of government, and uses that system to create an intimidation machine where anyone who gets anywhere near an illegal abortion can be subjected to a ruinous legal battle. This is the strategy the silence of the nation’s highest court endorses.
Dystopian enough for you?
This appalling development is about more than shutting down people’s right to control their own bodies, though that is awful enough. It’s yet another power grab by Republicans, a numerical minority whose electoral viability is compromised by our democratic system, and who are trying to maintain their hold on government without it.
Their tactics here are of a piece with the voter suppression measures just passed in Texas, and elsewhere, which are designed to counter the demographic changes that have tilted this country toward Democrats. Don’t like the way elections are going? Do an end run around the ballot box. Folks can’t turn Texas Governor Greg Abbott out — or reelect President Biden — if they can’t vote. Don’t like the way courts keep blocking restrictive abortion laws? Go around those, too. It’s harder to overturn an unconstitutional law if there’s nobody to sue.
And that slide away from democracy is something from which even the most enlightened laws cannot protect Massachusetts. This cynical legal strategy, if it is allowed to stand, will infect us here. Today it’s being used to upend the constitutional right to an abortion. What rights will they target next?