Policing and Surveillance: How Texas’s Abortion Law Could Add To Systemic Racism

Some experts see the existence of the law as a tool to threaten groups that are already vulnerable to disproportionate punishment.

Abortion rights protesters demonstrate outside the Texas State Capitol in Austin. Advocates argue state lawmakers have “unleashed” a law they will not have full control over. (Roxy Szal)

This story originally appeared on The 19th.

Vigilante action in the form of policing, surveillance and violence has long endangered people of color. That reality worries some experts who fear Texas’s latest anti-abortion law—which empowers private citizens to sue anyone they suspect of providing, or aiding and abetting an abortion—will disproportionately target people of color. 

“If there are people willing to report Black children because they’re selling bottles of water, and have little lemonade stands, which is what we have seen, do we not think there’s already a movement established in this space?” said Michele Goodwin, a chancellor’s professor of law at the University of California, Irvine.

The law’s emphasis on suing people who aid or abet abortions casts a wide net, from clinic employees to counselors to anyone involved in transporting a person to obtain an abortion. Its tacit approval of surveillance, in particular, makes people of color more vulnerable in a legal system where they already face disproportionate punishment.

Data from 2014 indicates that people of color constituted about 62 percent of the country’s abortion procedures that year. Black, Latinx and Native American people are also disproportionately affected by financial hardship, which means they may have fewer resources and flexibility to potentially travel outside of Texas for a legal abortion.

These factors, in addition to public uncertainty over the parameters of Texas’s abortion restrictions, mean that pregnant people of color and their loved ones may live in fear over how the law can be used against them, some abortion rights experts told The 19th. In other cases, the existence of the law may be used as a tool to threaten and harass people.

Goodwin said the civilian enforcement clause of Texas’s law reminded her of the Fugitive Slave Act of 1850 that allowed local governments to deputize private citizens to aid in the capture of runaway slaves.

“People say, ‘Well, that’s just extreme. It’s alarmist.’ It is not,” Goodwin said. “I think what is alarming and what is extreme are the histories and the present that exist that are irrefutable, and that are well-documented.”

Targeted surveillance or violence continues today. Research indicates that Black and Latinx families are more likely to be reported to and investigated by child protective services. A report last year from the Southern Poverty Law Center analyzed research on states with “stand your ground” laws that allow people to use force—in many cases deadly force—when they “reasonably believe” they are facing an imminent threat. Killings involving a white shooter and a Black victim were much more likely to be ruled justifiable in “stand your ground” states compared with cases with a Black shooter and a white victim. 

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

Social and news media reports in recent years have highlighted 911 calls made by white people, particularly white women, against Black people engaging in normal, legal activity. In one paper, University of Michigan researcher Apryl Williams argued, “White women engage an extralegal type of patrolling, policing and surveillance to regulate Black bodies in public spaces and uphold white supremacist notions of law and order.”

For decades, vigilante action has been used by groups who believe they are heroically responding to a perceived failure by the government, said Lisa Arellano, an associate professor of women’s, gender and sexuality studies at Colby College, who added that she sees commonalities between that history and the rhetoric of anti-abortion groups.

The Texas abortion ban S.B. 8 does not criminalize abortion; rather it relies on civil enforcement through lawsuits. But Drucilla Tigner, a reproductive rights policy strategist, with the ACLU of Texas, argues state lawmakers have “unleashed” a law that they will not have full control over.

“Even if they don’t intend to go after certain people, that doesn’t mean that the rest of the world—which this law gives standing to—won’t,” Tigner said.

By the time Texas’s six-week abortion ban went into effect on September 1, the anti-abortion lobbying firm Texas Right to Life had already launched a website where people could anonymously report doctors, clinics or individuals they suspected of helping people obtain abortions.

The website has since been removed from multiple online platforms for violating privacy guidelines, but it signals what the future of what Texas’s restrictions might look like if the law remains in place. Those who successfully sue someone over an abortion would be awarded at least $10,000 and have their legal fees reimbursed. As a result, providers in the state are now denying care to anyone more than six weeks pregnant, except in cases of medical emergency.

John Seago, the legislative director for Texas Right to Life, said he understands the concerns people have about people of color being disproportionately affected by S.B. 8. He added that while “individuals may bring their bad-faith motives into it,” lawsuits will ultimately be left to a judge to determine whether there is sufficient evidence.

A private individual suspected of aiding someone in an abortion process would potentially have to deal with the legal expenses, time commitment and stress that comes with a lawsuit—regardless of the outcome of the case.

Beyond the threat of a lawsuit, S.B. 8 can be used to create an environment of fear for both pregnant people and the people they interact with, abortion rights advocates said. Many people do not understand the specifics of Texas’s law, said Kamyon Conner, executive director of the Texas Equal Access Fund, a reproductive rights group. She said there are people in Texas who believe they can go to jail for having an abortion and others who are uncertain about what circumstances could lead to legal action.

“People are worried about risking the interests of their friends and families. People may be scared to talk about their needs around this really important issue of reproductive justice,” said Michele Gilman, a professor with the University of Baltimore Law School. “So it does threaten to fray different family and community and friendship bonds.”

Those concerns would contribute to a larger pattern of daily stress associated with racism and other forms of marginalization that many people of color experience. These stressors act as sources of “weathering” on the body and can lead to negative health outcomes for certain groups like higher rates of hypertension and heart disease, according to the work of researchers like University of Michigan professor Arline T. Geronimus.

Lawsuits on the constitutionality of the six-week ban are pending. On Thursday, Attorney General Merrick Garland announced a lawsuit against Texas, asserting the restrictions are “clearly unconstitutional under long-standing Supreme Court precedent.” The timeline of these cases remains unclear, leaving abortion rights organizations to find ways to assist people, such as through abortion funds that provide financial assistance for procedural or travel costs, Conner with the Texas Equal Access Fund said.

“We were already equipped, ready and able with the muscles we’ve been using to help people access care in the state for years and [now focused on] getting people out of state.”

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Candice Norwood is a breaking news reporter. Before The 19th, she was a digital politics reporter for the PBS NewsHour, a staff writer for Governing magazine covering state and local government, and a freelancer for the Bloomberg News White House team.