Turning Citizen Against Citizen

Picture by Hilary Stone Ginsberg

Republicans in the Texas state legislature are brilliant — in a sinister way. They fashioned an abortion law whose bizarre enforcement mechanism outsources implementation of the measure to private citizens. By removing state officials from carrying out the law, Texas Republican lawmakers are encouraging vigilantism. 

This is a clever, if devious, end run around the Supreme Court’s long-standing Roe v. Wade decision establishing a constitutional right to abortion. By removing state officials from enforcing its new law, Texas successfully evades review by federal courts.  As Dahlia Lithwick and Mark Joseph Stern note in Slate: “Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists. There’s no specific defendant to enjoin from enforcing the law.”

The Texas law bans virtually all abortions in the state. In Texas now, a woman many not get an abortion once cardiac activity — not a heartbeat — can be detected in an embryo. This typically occurs around the sixth week of pregnancy. (Medical experts do not consider an embryo to be a fetus until the ninth week after conception.) Many women are not aware they are pregnant until later in a pregnancy.  The law does not make exceptions for rape or incest. 

The United States Supreme Court declined this week to block the new Texas law, and the high court is poised to decide whether to overrule or modify its Roe decision when it considers, in the term beginning next month, a Mississippi law banning abortions after 15 weeks. Republican state lawmakers are betting the nation’s highest court, whose composition has veered far to the right in recent years, will sustain laws like the ones from Texas and Mississippi. The Supreme Court now includes three members appointed by former president Donald Trump, who vowed to appoint judges willing to overturn Roe v. Wade. 

The Texas law is objectionable on many levels. Obviously, it effectively prevents women from controlling their reproductive rights. It is draconian in its application as it allows very few exceptions. Abortion providers in Texas estimate that 85 percent of women seeking an abortion are already six weeks pregnant. They will be denied the procedure under the new law. 

Denying women control over their bodies is despicable in iteslf. But, the manner of enforcement adopted by the Texas legislature raises the stakes even higher. Now, anyone can sue people or entities who “abet,” or intend “to abet” a woman seeking an abortion after six weeks. Pregnant women are exempt from being sued, but anyone who helps them could be sued by an anti-abortion activist. If the people who file a lawsuit win, they will collect attorney’s fees and at least $10,000. If they lose, they simply walk away with no penalty, since defendants cannot recover their attorney’s fees. 

What does abet mean under the Texas law? It may mean a friend who loans a woman money for an abortion. The Uber driver taking a woman to a clinic may be abetting an abortion. A colleague who lends a woman a cell phone to call an abortion clinic might be guilty of abetting an abortion. The law does not clearly define “abet,” but that makes it even more sinister since it inculcates fear in the entire population of the state. A Texan might wonder, “If I advise someone about an abortion, can I be sued?”

This is vigilantism, which the Republican Party has been encouraging for several years. Some Republicans — including the former president — have made a hero of Kyle Rittenhouse, the young man charged with killing two people in Kenosha, Wisconsin, during protests against police violence. The ever-reprehensible Tucker Carlson said on Fox News: “How shocked are we that 17-year-olds with rifles decided they had to maintain order when no one else would?” Others on the far right have made a martyr of Ashli Babbitt, the woman killed as she participated in the January 6 storming of the Capitol. Last year, Florida Republican Senator Marco Rubio praised Trump supporters in Texas after they nearly ran a Biden campaign bus off the road. “We love what they did,” Rubio said.  A Pennsylvania Republican recently said of school boards that impose mask mandates: “I’m going in with 20 strong men and I’m gonna give them an option — they can leave or they can be removed.” Others have attacked teachers over mask mandates.

Trump has encouraged vigilantism. The former president has praised violence-prone supporters, such as Rittenhouse. ”I have tough people, but they don’t play it tough, until they go to a certain point,” he once said. “And then it would be very bad, very bad.” Mark and Patricia McCloskey, the St. Louis couple who brandished weapons at Black Lives Matter protestors, spoke at the 2020 Republican National Convention. Trump encouraged the mob that attacked the Capitol on January 6, and he praised the White supremacists who marched in Charlottesville, Virginia, in 2017.

Before the Texas law was passed, Republicans already had gone beyond merely praising and encouraging vigilantism. Some Republican-controlled state legislatures have legalized various forms of right-wing intimidation. Laws in Oklahoma and Iowa grant immunity to drivers whose vehicles strike and injure protestors. Some legislatures have passed laws empowering partisan poll watchers to intimidate voters and other election workers physically.

This is scary stuff! And now, Texas has made every citizen a vigilante. Might Republicans in the Texas state legislature next make it a crime for a citizen to decline to report a woman who sought an abortion? And, even scarier is that the Texas legislature has also passed a law allowing people to carry handguns in public without a permit. Vigilantes are bad enough; armed vigilantes in public are truly frightening. 

Posted September 3, 2021




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