Roe’s protections have been slipping away for 50 years, through a lack of sustained, long-term investment in progressive state policies, state legislators and state infrastructure.
There’s something epically on-brand about the fact that exactly 666 new laws took effect in Texas yesterday. Among them is a law that bans abortion at just six weeks, and creates a snitch bounty so that anyone can sue anyone they think is aiding and abetting abortion services.
Late Wednesday night, the Supreme Court issued an unsigned opinion stating that it would not block the law at this time, meaning it has now gone into effect. If the law stands, it will open the floodgates for other Republican-controlled state legislatures to pass abortion bans, and will lead to more abortion deserts across the country.
It’s clear: We can’t rely on the courts to protect our reproductive freedoms. And given the gridlock in Washington, we can’t wait for the federal government to pass national abortion legislation. Our best short and long term line of defense is to build power in our state houses.
Snitches Get Stitch… I Mean $10,000
After gerrymandering their way into wide legislative majorities in 2011, Republicans continue to command power over the state legislature in Texas. And brick by brick, their regressive laws continue to build a wall to keep Texans from fair democracy, fair elections and reproductive rights.
One new law, S.B. 8, is among the most extreme anti-abortion laws ever attempted by Republican legislators. It bans abortion as early as six weeks—before most people even know that they’re pregnant.
But it goes even further. Echoing the Fugitive Slave Acts, which gave private citizens the right to receive bounties for snitching on Black people suspected of violating slavery codes in the 19th century, this Texas law allows private citizens to sue literally anyone they think might be helping someone seek abortion services. That means that random strangers could sue health care providers, clergy members, even ride-share drivers. Even folks who send donations to Texas abortion funds could be sued. And if the snitch’s lawsuit succeeds? They’d receive a minimum of $10,000.
Then, in the cover of darkness, the Supreme Court issued an unsigned opinion stating that it would not block the law at this time. Despite Justice Sonia Sotomayor’s dissent calling the order “stunning,” the Supreme Court’s action means that this law will continue to be in effect in Texas.
There Were Already Abortion Deserts. Now There Will Be More.
This legal development, and the underlying Texas law, are devastating and nonsensical. But let’s be clear about a couple of things: First of all, this law, like many abortion restrictions, will disproportionately impact low income people, Black, Latino and Indigenous people, young and LGBTQ+ folks and people in rural areas. After decades of failed policies rooted in systemic racism and oppression, these folks will disproportionately lack the resources necessary to cross the expanding abortion desert in Texas to seek care. By just one metric, the Guttmacher Institute’s analysis shows that Texas patients will now have to travel 20 times farther to get an abortion.
And second, let’s be clear about something else: This does not end in Texas. Emboldened Republican-controlled state legislatures have been increasingly ruthless in pursuing anti-choice legislation. At least 600 bills have already been introduced just this year—which makes 2021 the worst year for anti-choice state legislation since Roe. As Republicans gain more state legislative control and momentum, this trend is accelerating.
How Do We Fight Back? Build Power in State Legislatures.
The truth is that Roe’s protections have been slipping away for 50 years, through a lack of sustained, long-term investment in progressive state policies, state legislators and state infrastructure. Reproductive freedom advocates, particularly on the ground in the states, are doing absolutely all they can to hold anti-choice legislators accountable.
But progressive state infrastructure overall needs more attention and more investment. On the other hand, Republicans and their allies continue to invest generously and aggressively in anti-choice state infrastructure, legislators and organizing.
This Texas law sets an incredibly dangerous legal precedent, and if the courts continue to let it stand, it will absolutely open the floodgates and embolden other GOP-controlled states to pass similar laws. The end game? Abortion deserts will grow in size and number. It’s all part of a national strategy to end access to abortion in the United States.
What does this all mean? We cannot rely on the courts to protect reproductive freedoms. Former Majority Leader Mitch McConnell changed the Senate rules twice in the last few years in order to pack the federal courts with conservative judges. And with the death of Ruth Bader Ginsburg and the rightward lurch of the Supreme Court, we have the most anti-abortion Supreme Court since the Roe decision in 1973.
We also cannot rely on the Congress, where passing any truly helpful abortion legislation would require getting rid of the Senate filibuster—which is extremely unlikely.
So where do we go? Our state houses. As the courts fail to protect reproductive freedom, and the federal government fails to pass comprehensive legislation, state legislatures are more important than ever. And they are an increasingly powerful venue to protect and expand reproductive rights. Our health, safety and well-being—our very lives—are in the hands of our state legislators.
The bottom line is that on reproductive freedom and so much more, the buck increasingly stops with state legislatures. We have to get involved, elect state legislators who will fight to protect reproductive freedom, and amplify their voices once elected. State legislative races are small and overlooked, compared to Congressional or federal races. But their power is growing, and who controls our states is increasingly a matter of life and death. No one in Texas or anywhere else should have to cross an abortion desert to access care. If we build progressive power in our state legislatures, we can make sure no one else has to.