Senate Bill 8, the prohibition of abortion for six weeks That Texas Gov. Greg Abbott signed into law last week is a total abortion ban in all but name. The bill is one of several across the country that bans abortions at six weeks’ gestation, in layman’s terms, four weeks after fertilization and two weeks after the first missed period.
Texas is the ninth state to pass such a bill, dubbed by the anti-choice movement that lobbies for them as “fetal heartbeat bills.” The term is inappropriate, because at six weeks gestation there is neither a fetus nor a heartbeat. In fact, there is no heart. At six weeks, the pregnancy consists of an embryo, which will not develop into a fetus for almost another month. There is no heart or any other organ present. The so-called “heartbeat” that opponents of abortion refer to is actually the pulse of some cells that are beginning to specialize and will eventually form heart tissue if the pregnancy continues. In the pregnancy phase, when abortions are prohibited by new Texas law, the embryo is about the size of a pea. There are no exceptions for rape or incest.
The bill amounts to an almost total ban precisely because of the anticipation to which legal abortion is interrupted. At this stage of pregnancy, most women still do not know that they are pregnant. Even those who do are sometimes unable to access abortion care this early, as providers often prefer to wait until eight to ten weeks gestation to perform abortions, for safety reasons. Before that stage, it is difficult to rule out the possibility of an ectopic pregnancy, an unviable condition that can be fatal.
The Texas bill will take effect in September, but implementation of its core provision, the abortion ban, will almost certainly be delayed as the law is challenged in federal court. This has been the fate of the eight previous bills, which were delayed or rejected by federal courts after they were passed in Georgia, Iowa, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, South Carolina and Tennessee. The same has happened with other bills aimed at prohibiting abortion in other stages prior to the viability of pregnancy: eight weeks, ten weeks, twelve weeks, eighteen weeks.
For years, Republican-controlled states have always passed these bills, and federal courts have always thrown them out, even district courts where the federal judiciary is rife with arch-conservatives and anti-abortion ideologues. There has simply been no legal justification to defend them. The supreme court precedent that outright abortion prohibits pre-viability is unconstitutional – established in 1973 with Roe v Wade and reaffirmed in 1992 with Planned Parenthood v Casey – is simply too unequivocal.
If Republicans know that these state laws will be rejected by the federal courts, why have they continued to pass them? Even without formal implementation, abortion bans accomplish much for the anti-choice movement. They frighten and confuse pregnant women and further stigmatize abortion. They prove to be useful messaging and fundraising tools for Republican state politicians. And they established test cases for federal courts, allowing the anti-choice movement to craft new theories and legal tactics to reduce access to abortion and harass bankrupt providers.
It is in this last element that the Texas law represents an innovation for the misogynist right. In addition to the prohibition of abortion, the bill includes a peculiar provision that privatizes the application of that law. SB8 gives any individual, including those located out of state, standing to sue people in Texas who “aid or instigate” an abortion or who “intend” to help an abortion patient. What Cheat Laws – specific restrictions on abortion providers, a separate list of state anti-choice laws that are designed to make it too costly and burdensome for providers to perform abortions within a state – this part of the law appears to be primarily aimed at punishing doctors and nurses, increasing provider overhead costs and ultimately closing clinics. Under the bill, those who sue can collect a minimum of $ 10,000 if they win. But if a defendant wins the lawsuit, they will not be able to recover legal fees.
But in addition to targeting providers, the civil lawsuit provision of the Texas bill is worded so broadly that it amounts to a full-scale attack on any kind of action or speech in support of abortion rights. It would make virtually everyone involved in running a clinic, or making a material contribution to a pro-choice organization, sued. You can sue volunteers escorting the clinic; The clinic’s non-medical staff, such as custodians or receptionists, can also do this. Anyone who has donated to an abortion fund, or a pro-choice organization like Planned Parenthood, can be sued under Texas law. This can also be done by anyone who provides some kind of material support to a patient seeking an abortion, such as transportation to or from the clinic. After a protest, the Texas Legislature amended the bill to create an exception, saying that a rapist would not be allowed to use the law to sue providers who caused their victim to have an abortion. But the law only applies to those men who have been convicted of rape. In Texas, 91% of violations it is not reported.
Left intact, the law would not only force Texas women to become pregnant against their will; it would also allow any misogynist or anti-choice person to impose their bigotry on Texans through frivolous and harassing judgments. Hopefully, the courts will dismiss the civil lawsuit provision. If they don’t, freedom of speech in Texas will be severely restricted.
For the most part, these bills have functioned as a kind of grim misogynistic political theater, deliberate messaging exercises that really aren’t going anywhere. But that could be changing. Last week, the supreme court agreed to hear a case challenging a Mississippi law prohibiting abortion at 15 weeks’ gestation. The central question in that case will be whether pre-viability abortion bans are really constitutional. If the court rules in favor of Mississippi, and it seems likely it will, abortion bans like the one Texas just passed will become legal. And the falsely named “heartbeat bills” will go from an execution of misogyny to an application of it.
George is Digismak’s reported cum editor with 13 years of experience in Journalism