With little fanfare and late at night, America’s Supreme Court this week declined a request to block a Texas law drastically restricting access to abortion services, effectively striking down 1973’s Roe v Wade ruling that legalised abortion in America.
A day later, the Court formally voted 5-4 not to block the law.
Texas’ new legislation, known as SB8, makes it illegal for a woman to get an abortion after the sixth week of pregnancy, a point at which most women aren’t even aware that they are pregnant. The law does not make exceptions for cases of rape or incest. Raped Texan women will now be forced to carry their rapist’s child to full term.
Republican state laws testing Roe v Wade have become a kind of political performance art over the last few years, with state after state enacting laws restricting abortion rights only to see them struck down by the Supreme Court. But after Donald Trump was able to appoint three new judges (a full third of the court), anti-abortion activists and politicians have sensed a new opportunity, under a court now dramatically shifted to the Right.
It’s worth understanding the mechanics of the new law, as it has been framed in such a way that sidesteps many of the usual barriers to legislative success. Under SB8, anyone participating in an abortion can be sued by literally any other Texan. This doesn’t just include the surgeon, but those working at an abortion facility, or those providing funding or insurance services to a woman seeking termination. In theory, it could even include the Uber worker that drives a woman to the clinic.
The rules of the game are heavily skewed. If the anti-choice plaintiff wins, they get to collect $10,000 (AU$13,471) and claim back legal fees. If the defendant wins, they still have to pay their own legal costs. The details of the bill are positively dystopian.
This opening of the legislative floodgates means that just about anyone involved in the business of providing abortions in Texas can and probably will be assailed with multiple vexatious lawsuits funded by rich people or organisations. The crippling costs associated with defending such cases will put many – even those who comply with the new law – out of business. It’s a ‘vigilante system of punishment’ which will likely force all of the state’s abortion clinics to close.
This is just the start. Texas’ draconian new laws are likely to be quickly replicated by many other Republican-run states. Although the most populous states in America are mostly governed by Democrats, huge swathes of the U.S. are about to become places where a safe abortion cannot be found.
This is undeniably a Trump Administration consequence, an act of explicit violence against women who will once again enter the reproductive dark ages, forced to seek back-alley abortions, coat-hangers, pills, risk and death.
‘I keep thinking about the scared 13-year-old who’d been raped repeatedly by her father. She was too afraid to tell anyone and [had] no idea she was pregnant until she was many weeks beyond six. I met her when I was prosecuting her rapist. Texas would force her to carry that pregnancy to term.’
As a candidate in 2016, Trump famously declared that “there has to be some form of punishment” for a woman seeking an abortion. Texas’ new laws have seen that wish come true.
Reproductive rights are human rights. Those wishing to take away women’s rights to control their bodies, without placing any burden on the man involved in conception, aren’t pro-life, they are anti-women. There is room within the debate for discussion of where the rights of a mother and unborn child intersect, but it’s a view from the absolute fringe that endorses the idea of a thirteen-year-old rape victim being forced by the state to carry a child to term. Yet this is the view that has prevailed in 2021 Texas.
It should also be pointed out that this is a war on the poor and in America, that means a war on minorities. Rich women and their daughters will be able to pay to leave the state and access reproductive services. Poor women and poor women of colour won’t have that luxury. Banning abortions doesn’t stop women from needing them — it just moves pregnancy terminations from operating theatres to homes or laneways at night. Women will inevitably die needlessly because of this new legislation.
As is so often the case with far-Right politics, the hypocrisy at the heart of those empowered to make such decisions is astonishing. Five of the court’s six conservative justices were appointed by Republican presidents who took office after losing the popular vote and who were confirmed by senators representing a minority of Americans. Six of the nine justices are men, who of course will never face such reproductive decisions. Two of them – Clarence Thomas and Brett Kavanaugh – faced highly credible allegations of sexual assault at their confirmation hearings.
Three justices were installed by Donald Trump, who was impeached twice as well as being credibly accused of sexual assault and rape by multiple women. Sure enough, all three of Trump’s judges ruled to strike down Roe v Wade.
The new legislation is also loudly supported by Republicans who just this week were equally decrying President Joe Biden’s military pull-out for allowing the Taliban to once again restrict women’s rights in Afghanistan.
It’s no coincidence that this story centres on Texas, which is ground zero in the political war taking place in the post-Trump era. It’s Texas that has enacted the most draconian voter restriction laws in the country and closed hundreds of polling places since 2013. It’s Texas that has loosened gun laws and allows citizens to carry unlicensed handguns. And it’s Texas whose Governor has threatened businesses enacting COVID-19 mask mandates with lawsuits and, as a consequence, is enduring the worst virus outbreak in the country (with the possible exception of Florida).
There remain glimmers of hope.
Federally, Joe Biden has said he is:
‘...deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right.’
Biden could attempt to put through legislation that would supersede Texas’ new laws. But make no mistake — this is a historic victory for the conservative anti-abortion movement and one that forms just part of a cascade of further legislation aimed at restricting women’s reproductive health rights. The “morning after” pill is still available over the counter in most of America, but is very much in the crosshairs for the hard-Right political lobby.
For those in Australia watching on in horror, remember that the far-Right is also ascendant in Australian public life, wanting more God, more guns and less rights for women. Assistant Minister for Women Amanda Stoker and MP George Christensen both attended a recent anti-abortion rally in Brisbane. Senator Matt Canavan has falsely claimed that some abortions are being carried out based on the gender of the unborn child.
Christensen, in particular, is a poster-child for the hypocrisy often barely beneath the surface on this issue, holding such a high personal moral code that he made at least 28 trips to the Philippines during 2017 and 2018, often visiting a city synonymous with prostitution where he was a noted “regular” at adult entertainment bars. This man now wishes to control Australian women’s uteruses.
If the pro-life movement truly sanctified all life, you would see them campaign for the rights of the living as well as the unborn, for safety and funding aimed at increasing the survival rates for women with ectopic pregnancies, for example. What person who cares about women would spurn safe termination services in favour of backdoor abortions from the 1950’s?
This issue is about hatred for and control over women, and America’s Supreme Court, tilted to the Right by three appointments from a man with a long history of sexual assault, has struck a blow for those who watch the Handmaid’s Tale and think “if only”.
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