Sometimes legislators pass laws that are incomprehensible. Sometimes, they move beyond incomprehensible to counterproductive. And sometimes they move beyond counterproductive to simple silliness. Then, there are those times when laws are passed that are downright cruel. The Texas legislature passing SB 8 is one of those occasions.
Writing in The Los Angeles Times, Michael Hiltzik states that SB 8 effectively criminalizes all abortions performed in Texas after six weeks of pregnancy. This, of course, is before many women even know they are pregnant. In his comprehensive opinion piece, Hiltzik generously quotes from U.S. District Court Judge Robert Pitman’s 113-page ruling, blocking the law. Judge Pitman ruled that from the moment SB 8 went into effect, “women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution.”
This is the central moral, ethical and judicial point of the Judge’s ruling and requires no further elaboration. However, two days later, the 5th U.S. Circuit Court of Appeals overturned Judge Pitman’s order. Hence, the law is again in effect.
SB 8 makes no exceptions for pregnancies resulting from rape or incest or for fetal health conditions “incompatible with life after birth.” Further, it creates liability for anyone who “knowingly” aids or abets the performance of abortions that violate its terms. Further, as Hiltzik points out, the law neither defines “aiding or abetting,” nor does it require a concrete act; “all that is required is that the person intended to ‘aid and abet.”’
One significant (Hiltzik uses the term “pioneering”) feature of the law is that it places enforcement in the hands private individuals (can we call them abortion vigilantes?) and not government authorities. Any individual can be a plaintiff—whether or not they have been harmed—and bring suit. I know Texas has a reputation for idolizing the Wild West—but seriously? Anyone can bring suit against someone who has an abortion? How does this enhance safety across the state of Texas? How does this dignify women?
And the law goes on to constrain defendants: they cannot raise the defense that they believe the law is unconstitutional or claim they relied on a court decision overturning the law if that decision is later overruled, even if it was in place when they acted.
Abortion is a soul-wrenching decision, but it is one that belongs squarely with the woman and her doctor. Legislators have no business imposing their views on such an agonizingly personal decision. And the current divisiveness in our body politic on issues as diverse as vaccine mandates and the response to the January 6 insurrection—virtually guarantees that this issue will become even more politicized than it already is and women’s bodies will again be exploited for political gain.
This slippery legal slope—moving from counterproductive to cruel—is currently on display in this Texas travesty. Yet again we must affirm that decisions about a woman’s body must remain between her and her doctor and out of bounds for the vague and often vindictive tendrils of political considerations.