State Bill 8 (SB 8) came into effect in Texas a week ago. This law bans abortions once a woman is six weeks into a pregnancy. As anyone who has been pregnant knows very well, not many women know they are pregnant this early. There are few if any physical signs. Some women, especially when they are young, don’t have regular menstrual cycles. A late period may be dismissed as being the result of stress or other life factors. Results of pregnancy tests taken that early are unreliable. A woman using birth control may assume there is some other reason for a missed period. A woman who does not want to be pregnant may be in a state of denial about the possibility.
As Jia Tolentino writes in The New Yorker, even for someone who knows she is pregnant that early, there is the reality of daily life:
“Anyone who has had to simultaneously make a doctor’s appointment, find emergency child care, and secure time off work can understand that what amounts, at best, to a two-week window . . . will rule out abortion for most people who need it.”
In other words, even in the best case scenario, few women will know they are pregnant early enough to allow for a legal abortion under this new law, and fewer still will be able to organize the logistics so they can get one.
In the past several months, 12 American states have attempted to pass legislation banning abortion after six weeks of pregnancy, but they have been foiled by the courts, which have found such laws to be unconstitutional, following the precedent set by the 1973 U.S. Supreme Court decision in Roe V Wade.
At first, I assumed the Texan move to limit access to abortion would fail for the same reason, because I did not appreciate the particular insidiousness of SB 8. It escapes the Roe v Wade precedent by placing responsibility for its enforcement on private citizens. SB 8 allows people to file lawsuits against anyone who performs an abortion after the six-week window has ended, as well as against anyone who participates or intends to participate in any way in such an abortion or in facilitating access to such an abortion.
This has terrifying implications.
For example . . .
Suppose, for instance, you are the anti-choice mother of a pregnant 16-year-old. You can sue her, the staff of the abortion clinic, the taxi driver who takes her to the clinic, the girlfriend who goes with her – anyone who has supported or assisted her in any way.
Perhaps you are a pregnant 16-year-old. You make an appointment to see your family doctor, who says she can’t talk to you about an abortion in case she gets sued; your best friend says she can’t help you because she is afraid of being sued; your pro-choice mother assists you and finds herself facing a lawsuit brought by her anti-choice ex-husband (your father).
Maybe you have just left your abusive partner, who knows you are two months pregnant. Now, in addition to worrying about finding somewhere to live, keeping yourself and your two young children safe and sorting out your family law issues, you need to worry that, if you decide not to continue with this pregnancy, your ex might sue you, just because he can.
Or, you work at a sexual assault centre or a sexual health clinic, where you talk to a lot of pregnant women who wish to terminate their pregnancy: you counsel them to get an abortion and you can get sued.
Law is not always justice
These lawsuits can be filed by anyone, whether or not they know the person they are suing or the woman seeking the abortion. If they (the plaintiff) are successful, they are entitled to $10,000 and their legal fees from the person/people they have sued (the defendant(s)). If the plaintiff is not successful, they don’t have to pay the defendant’s legal costs. In other words, there is no disincentive to stop people from bringing malicious lawsuits.
Even if courageous judges throw some of these lawsuits out, the harm will be considerable. Some women will continue with their pregnancy to avoid the threat of being sued. All those who work to support women with reproductive health issues will be working in a climate of fear and secrecy. It will be harder for women to get basic health information. Those who are sued but win will have to pay their own legal fees.
The U.S. Supreme Court ruled, in an unsigned majority opinion, that while there were some constitutional concerns with SB 8, it raised “complex and novel antecedent procedural questions” that barred it from acting.
In her dissent, Justice Sonia Sotomayer, accusing the majority of “burying their heads in the sand, described SB 8 as:
“a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny”
No time for complacency
The majority of Canadian voters don’t identify abortion as an election issue, but maybe we should. While it might be difficult or even impossible to re-criminalize abortion, Texas shows there are many other ways to make it almost impossible for a woman to access one.
There is no certainty in politics: four weeks ago, Justin Trudeau’s Liberals were a shoo-in to form at least a minority and quite possibly a majority government, but now there is now some doubt about that, and I don’t want to rely on Erin O’Toole’s Conservatives to do the right thing when it comes to abortion.
O’Toole may call himself pro-choice, but much of his base of support comes from people who are anti-choice and, at some point, he will need to make them happy. Under his leadership, 81 members of the Conservative caucus – a majority – voted to reopen the abortion question. He has said during the campaign that he supports the right of medical professionals to refuse to perform procedures that they conscientiously object to.
Whichever party forms the government after the election will have the opportunity to ensure that women in this country have true and equitable access to reproductive choice, including abortion. When you vote on September 20th, think about Texas.