The Texas State Capitol at night. Photo credit: Eros Alzamora / Shutterstock.com
Is there any other phrase for the events that have activated the Texas abortion law other than “creeping fascism”?
First, the ban itself is essentially an anti-law, designed to promote vigilantism. In itself, that’s not surprising. S.B. 8 is the culmination not just of numerous state-level laws that have narrowed abortion access but 40 years of extra-legal violence on the Right. This has included clinic bombings, the murders of abortion doctors, and the relentless, daily intimidation of women seeking reproductive services around the country. It was, after all, anti-abortion activists who invented doxing, often targeting the children of their opponents.
But the Texas law is a novel strategy, one that mobilizes civil codes to undermine Roe v. Wade’s ban on state officials intervening in private health decisions. S.B. 8, or the “fetal heartbeat bill,” deputizes individuals to file lawsuits against anyone who “aids and abets” an abortion beyond six weeks of “pregnancy” (that is, by definition, six weeks after the last menstrual period, between three and four weeks of when an actual pregnancy begins). If that individual wins their lawsuit, they receive a minimum bounty of $10,000 and attorney’s fees.
The law potentially targets numerous people linked to an abortion procedure: doctors and clinic staff, abortion funds, paid drivers, and friends and family members. It does nothing to discourage frivolous or harassing lawsuits. In the event that the suit is unsuccessful, the law provides no attorney’s fees to the person being sued, and no fines. An abortion vigilante does not need to establish standing to sue someone. There is no need to establish how the accuser was harmed by the abortion: the accuser does not need to know the person who had the abortion, and they need not even live in Texas.
The law also crosses a line that has caused prior abortion bans to fail, since there are no exceptions for incest or rape. The law is entirely focused on “protecting” what is, in fact, not a fetus but an embryo. Not incidentally, it gives a rapist more rights to protect any products of conception than the person he raped.
All of these weapons are now directed at a procedure that remains perfectly legal and constitutionally protected. The equivalent use of civil suits, which might surprise the Texas Republican majority, would be if I, a resident of a state that controls gun ownership, sued someone I didn’t know in a different state for buying a gun.
Texas has been working on this for a while. The Legislature introduces abortion restrictions the way other states produce bureaucracy—constantly. And their citizens die. Texas was where college student Rosie Jiménez became the first known casualty of the Hyde amendment, which banned Medicaid funding for abortions: she died on October 3, 1977. Jiménez did what pregnant people everywhere have done—sought help to end an unwanted pregnancy from someone who offered to do it cheaply, but was not sufficiently knowledgeable to do it safely.
Restricting abortion access really does kill women. As countless public health researchers have documented, every time Republicans win the presidency and the U.S. federal government ends funding for NGOs and practitioners who “advocate” for abortion, the rates of illegal abortion rise. It is generally birth control and other reproductive health NGOs that lose funding under these policies because they are the ones advocating for safe, legal abortion. As a result, these policies decrease access to birth control and safe abortion, and women die.
Despite these facts, Texas has continued to pass laws restricting abortion access, banning private insurance coverage of abortion, and delaying and discouraging access to procedures by requiring two appointments for a legal abortion. Another law requires parental permission (or a judicial override) for minors seeking an abortion, even if a girl’s father is responsible for the pregnancy.
Texas has also led the way in using medical licensing to restrict access. A few years ago, lawmakers tried to require clinics to meet the physical standards of hospitals, although the Supreme Court struck that down on the grounds that these requirements had no relationship to health. Having terrorized most local providers, Texas also now requires that practitioners from outside the community have hospital admitting privileges, something that they can easily be denied by the hospital itself.
Abortion access can also be a health emergency, one that affects impoverished people disproportionately. According to the Guttmacher institute, 75 percent of those who get an abortion are low-income, the majority are Black or Latinx, and most have at least one other child. Not surprisingly, Texas—a state with a historically vast population of working people living in poverty—was where the original Roe v. Wade case was originally filed.
It’s worth recalling that Texas first outlawed abortion in 1854, nearly 20 years after it seceded from Mexico to protect the institution of enslavement, which was illegal in Mexico: seven years later, the state joined the Confederate States of America. Legal chattel slavery ensured that enslavers in Texas already controlled the reproduction and offspring of African-descended people, and the Mexican Catholic Church had already, by that period, sought to control abortion among Latinx people. The American-born leadership in Texas completed the trifecta by legally limiting abortion for everyone who was left, primarily white women.
Today, the state has a poverty rate of 16 percent, 1.4 percentage points higher than the national average, and impoverished people in a geographically vast state will have difficulty traveling to a neighboring state where they can access an abortion. Tellingly, when Ireland voted in a referendum in 2018 to legalize abortion, voters were responding to the unfairness that a person with an unwanted pregnancy had to travel to England for the procedure—a shorter and cheaper trip than leaving the state is for many Texans.
Forcing progressives to defend abortion over and over also diverts us from the many social justice agendas that truly support children and their families. Since the 1980s, my own activism and scholarship around what we called “reproductive freedom” and then “reproductive justice” have focused on expanding the conversation away from a narrow focus on abortion-rights politics and toward a broader agenda that includes what humans need to enjoy sexual freedom and the ability to produce the next generation. This includes an end to coercive sterilization, as well as queer, trans, and sex-worker justice. It also includes a just economy: welfare rights, housing, high-quality schools that serve all kids, and disability and immigrant justice. These human rights also require labor justice—not just in salaried work, but for those who work in surrogacy and adoption. It includes foster care reform that protects birth parents, and an end to mass incarceration and racist policing.
But creeping fascism is relentless: the political Right keeps making us drop our other work to turn out for abortion rights. Denying the right to an abortion is one form of the gender-based violence that is integral to authoritarian rule. It is about controlling anyone who can get pregnant, and particularly those who are impoverished. Although they do not use the language of race, abortion laws mostly control Black and Latina women, even though the Right is also obsessed with declining white birth rates and preventing white women from controlling their own reproduction.
Ironically, S.B. 8, like a related effort to end abortion access in Alabama, does not even pretend to justify itself as a measure to protect actual embryos. In vitro fertilization (IVF) clinics, for example, remain untouched. I could go into an IVF clinic in Dallas tomorrow and pour embryos down the drain, stomp on them, or thaw freezers full of them with no legal consequences from these so-called “pro-life” measures. Clyde Chambliss, an Alabama state legislator and the sponsor of an anti-abortion bill, explained what’s really at stake in this seemingly odd exception: “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.”
Unlike traditional anti-abortion rhetoric about “life,” with its high focus on religious theories about conception, fascist policies seek to control bodies, not ethics or faith. The effect of laws like S.B. 8, designed to control what happens to “an egg . . . in a woman,” is to reaffirm the fear that having penis-in-vagina sex—whether violent or consensual, unwanted or wanted—always risks ending your life as you know it for at least the next twenty years.
This is the authoritarian Right’s endgame: a person who doesn’t control their own body has no political, or other, rights either. They are a vessel for others’ desires, projections, or political calculations. Today, the birth of an infant can still mean the end of someone’s education, forcing them into low-wage work or bare survival. It can mean poverty, houselessness, and, if you are a parenting teen or have “too many” children, social contempt.
These things shouldn’t be true, but they often are. Pregnancy and childbirth are also potentially dangerous conditions that can be fatal or disabling, putting the mental and physical health of those carrying an embryo or fetus at risk. We don’t demand this kind of sacrifice, often made unwillingly, of anyone but pregnant people. Even though 56,000 people a year die for want of a kidney, and most of us walk around with an extra one that we don’t really need, we don’t compel people to become organ donors: even dead bodies are legally entitled to be buried intact, their organs unharvested as people who desperately want to live watch their chances of survival dwindle.
Demanding that anyone be forced to carry a pregnancy to term against their will is the epitome of state-imposed unfreedom; that Texas has enlisted ordinary citizens as its agents, as authoritarianism does everywhere, is the opposite of democracy. Most importantly, abortion will continue, in Texas and elsewhere, whether or not it’s legal.
It’s up to us how many people die trying to get one.
Laura Briggs is professor of women, gender, sexuality studies at University of Massachusetts Amherst. She is the author of How All Politics Became Reproductive Politics: From Welfare Reform to Foreclosure to Trump, Somebody’s Children: The Politics of Transracial and Transnational Adoption, and Reproducing Empire: Race, Sex, Science, and U.S. Imperialism in Puerto Rico.