The Texas Abortion Ban Is History Revisited

Aspects of Texas’s new six-week abortion law are eerily reminiscent of the Fugitive Slave Acts, which traumatized Black people for fear of being tracked, stalked and charged with violating the codes of slavery.

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A Black Lives Matter march in D.C. in September 2017. (Miki Jourdan / Flickr)

This week, the Supreme Court refused to grant relief to petitioners seeking to block the Texas anti-abortion law known as S.B. 8 or the “Texas Heartbeat Act” from going into effect. The law represents the most significant challenge to abortion rights since the Supreme Court struck down the Texas law criminalizing abortions in the landmark, 1973 decision Roe v. Wade.  For example, S.B. 8 bans abortions after six weeks of pregnancy—a time in which most people will be unaware of their pregnancies.   

S.B. 8 also provides that it “shall be enforced exclusively [by] … private civil actions.” That means that “any person, other than an officer or employee of a state or local governmental entity” in Texas is authorized to “bring a civil action against any person who performs or induces an abortion” or who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.”  Under this new law, aiding and abetting includes “paying for or reimbursing the costs of an abortion.”  

The law not only targets insurance providers, but ostensibly—any person—swept into the reach of a person obtaining an abortion—all of which makes the law problematic. Its reach could include the taxi driver who transports the patient; a receptionist who assists in completing the necessary paperwork; and possibly even the babysitter or child care provider who attends to the person’s children during the abortion.   


Its reach could include the taxi driver who transports the patient; a receptionist who assists in completing the necessary paperwork; and possibly even the babysitter or child care provider who attends to the person’s children during the abortion.   


There are many troubling aspects of the law and the legislature’s action in enacting the law.  The law directly undercuts Planned Parenthood v. Caseywhich upheld a right to abortion, affirming “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” By enacting the law, the legislature overlooks the grave and alarming maternal mortality rate in Texas—a state known as one of the “most dangerous” places in the developed world to be pregnant due to the incredibly high rates of maternal deaths.   

For some time, the Texas legislature has shown a shameful disregard for the lives and safety of pregnant people, erroneously portraying abortion as harmful and thus justifying enactment of laws undercutting abortion rights. However, in 2016, the Supreme Court observed that a woman is 14 times more likely to die by carrying a pregnancy to term than by obtaining an abortion.  Writing for the majority, in Whole Woman’s Health v. HellerstedtJustice Breyer explained, “[n]ationwide, childbirth is 14 times more likely than abortion to result in death…Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion” and the “mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion.” 


In 2016, the Supreme Court observed that a woman is 14 times more likely to die by carrying a pregnancy to term than by obtaining an abortion.


Equally worrisome, by enacting S.B. 8, the Texas legislature empowers and legitimizes harassment and uses the tested tools of slavery to carry out its antiabortion agenda. Aspects of the law are eerily reminiscent of Congress’s enactment of the Fugitive Slave Acts (FSAs), which in the 19th century similarly empowered private citizens to seek bounties on individuals who sought privacy, liberty and freedom from laws and social conditions that undermined their bodily autonomy. Such laws traumatized Black people for fear of being tracked, stalked and charged with violating the codes of slavery.   

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A flyer warning Black people to avoid speaking to “watchmen and police officers,” on display at The Museum of African American History in Boston. (moonjazz / Flickr)

The FSAs bestowed incentives and rewards to carry out troubling, inhumane aims, undercutting the autonomy and liberty of Black people—freed or enslaved—and often leading to violence. And these laws served other purposes too: They skillfully deployed citizen participation in propping up and preserving slavery as a social, political and legal institution—an American way of life. They emboldened people committed to the enterprise of slavery and effectively legitimized various means of provocation and harassment.  

Sadly, this is history revisited.   

Today, Texas enshrines its way of life. S.B. 8 now weaponizes citizen participation in surveillance, tracking and blocking a constitutionally protected medical procedure. For example, the law allows “statutory damages” of at least $10,000 for every abortion “performed or induced” in which “the defendant aided or abetted.” The Texas law is so extreme that it can be enforced against an individual “whether the person knew or should have known that the abortion would be performed or induced.”   

Clearly, the law poses a threat to abortion funds that provide a financial safety net for poor women who seek abortions. Yet, given its unparalleled breadth, its reach is an extreme threat. It empowers harassment of patients, their friends and family members, clinics, doctors and literally any person in the path of helping a person terminate a pregnancy.  

Given the history of mob justice with regard to abortion, the bombing of 42 abortion clinics since 1977, use of GPS to track women entering Planned Parenthooddeadly attacks on abortion providersmass shootings at abortion clinics and daily violence and harassment at clinics, which goes underreported in traditional news media, Texas steps into a dangerous zone that not only undermines the constitutional right to terminate a pregnancy—but now calls for the worst in citizen action.   

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About

Michele Goodwin holds the chancellor’s professorship at the University of California, Irvine. Goodwin is the host and executive producer of podcast "On the Issues with Michele Goodwin." She is also the founder and director the Center for Biotechnology and Global Health Policy and its Reproductive Justice Initiative. She has published with Forbes, Salon, L.A. Times, Politico, Chicago Sun Times, Houston Chronicle, Christian Science Monitor and the New York Times, among others. Find her on Twitter and Instagram.