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Rolling Back History: Professor Claire McKinney on Abortion Politics in Texas

c-mckinney-texas-abortion-eventOn September 1st, abortion politics in America entered a new chapter as a blatantly unconstitutional law banned abortions in Texas after 6 weeks of pregnancy. S.B. 8, “The Texas Heartbeat Act,” asserts Texas’s interest in the life of an “unborn child” and prohibits abortion after detection of a “fetal heartbeat.” Importantly, the law also pioneers an enforcement mechanism never before seen statewide: private civil action. This provision empowers private citizens – that is, any Texan – to sue anyone who violates S.B. 8 by “aiding and abetting” abortion, awarding successful prosecutors a $10,000 bounty as well as reimbursement of their legal fees. William & Mary’s Gender, Sexuality, and Women’s Studies Program hosted Professor Claire McKinney to delve deeper into this law, its context and history, and the impact it will have on pregnant people in the United States.

S.B. 8 is far from the first bill to use the cutoff of a “fetal heartbeat,” Professor McKinney explained; model legislation for such bills was originated by anti-abortion group Faith2Action and first introduced in the Ohio legislature in 2011. In addition to limiting abortion access to an impossibly small window – 6 weeks gestation is only 2 weeks after a person’s menstrual period would be due, long before many even realize that they are pregnant – the entire concept of a “fetal heartbeat” is a misnomer. As Professor McKinney noted, an embryo at 6 weeks gestation has no heart valves yet; the “heartbeat” sound is just an artifact of the technology used to detect electrical activity. States have attempted to utilize this metric repeatedly since 2011, but such bills have always been struck down as unconstitutional.

What sets S.B. 8 apart is its innovative enforcement mechanism, the delegation to private citizens of the right to enforce the law. While the state of Texas cannot infringe upon abortion access during the first trimester of pregnancy according to Roe v. Wade, S.B. enables everyone else to: neighbors, family members, religious leaders, romantic partners, even paid anti-abortion activists. This clever workaround was pioneered by former solicitor general of Texas and Trump team lawyer Jonathan F. Mitchell, who helped the town of Waskom, Texas symbolically ban abortion in 2019 under the same mechanism. Three dozen cities copied that law, including one where a Planned Parenthood was forced to close as a result, but until now, it had never been implemented at the state level.

Since S.B. 8’s 6-week limit is widely regarded as unconstitutional, many anticipated that the Supreme Court would enjoin the law, or prevent it from being enforced. However, because the mechanism of enforcement in S.B. 8 is private civil action – not public prosecution by the state of Texas – the Court found that it was impossible to know who specifically would be enforcing the law. Therefore, there was no specific individual or entity whom they could prevent from doing so. The law came into effect when the Court failed to enjoin it in time, with an unsigned 5-4 opinion handed down the following day. The 4 minority justices revealed the split by signing their dissents: Chief Justice Roberts and Associate Justices Breyer, Sotomayor, and Kagan.

Now that S.B. 8 is in effect, Professor McKinney said, about 85% of abortions in Texas are illegal. Abortion clinics will be sued and forced to close, and hospitals in Texas already rarely provide abortions because of “conscience clauses” that exempt entire facilities. As a result, pregnant people in Texas will become “abortion refugees,” forced to travel out of state to access abortion care. Those who cannot afford to travel may attempt medication abortion in their homes, likely secretly in order to avoid bringing harm to their family and friends. Since self-abortion is not directly addressed in the law, it is entirely possible that legal action could be pursued against those who perform it.

With these outcomes in mind, it becomes increasingly obvious that S.B. 8 will disproportionately harm poor, rural, and non-white populations. Professor McKinney cited The Turnaway Study, by Diana Greene Foster, perhaps the most famous work on the impact of accessing and being denied abortion, to demonstrate that S.B. 8 is likely to exacerbate poverty, force pregnant people to stay with their abusive partners, and even cause deaths due to complications of childbirth. Additionally, having what Professor McKinney calls a “chilling effect,” S.B. 8 establishes a surveillance state with women as suspect. Suddenly the medical visits of any female-presenting person are the business of the entire public, since any individual can sue someone they suspect of having accessed abortion. When “aiding and abetting” carries such a heavy penalty, anyone who presents as a woman becomes inherently dangerous and secondary to the social order.

In terms of what can be done to resist S.B. 8 and similar bills, opportunities moving forward include civil disobedience such as protesting, donating to abortion funds, and interfering with surveillance mechanisms. Additionally, Professor McKinney says, we should seek to normalize abortion within our circles; 1 in 4 women in the US will have an abortion in their lifetime, and shame and stigma only serve to keep abortion hidden. Lastly, we can effect change through politics by pressuring our representatives to treat abortion access with the urgency it clearly requires, permanently codifying the right to choose.