The Texas abortion ban is a performance of misogyny. But it might get worse

Unconstitutional anti-abortion laws are often a grim kind of misogynist political theater. But that might be changing

Moira Donegan
Sun 23 May 2021 11.23 BST

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It’s in this last element that the Texas law represents an innovation for the misogynist right. In addition to the abortion ban, the bill includes a peculiar provision that privatizes the enforcement of that law. SB8 grants standing to any individual – including those outside the state – to sue people in Texas who “aid or abet” an abortion or who “intend” to help an abortion patient. Like Trap laws – targeted restrictions on abortion providers, a separate slate of state level anti-choice laws that are designed to make it too expensive and burdensome for providers to perform abortions within a state – this part of the law seems largely intended at punishing doctors and nurses, increasing provider overhead costs, and ultimately shutting down clinics. According to the bill, those who sue can collect a minimum of $10,000 if they win. But if a defendant prevails in the lawsuit, they are not able to recoup legal fees.

But in addition to targeting providers, the civil lawsuit provision of the Texas bill is so broadly written as to amount to a large-scale attack on any kind of action or speech in support of abortion rights. It would render virtually everyone involved with the operation of a clinic, or who materially contributes to a pro-choice organization, to be sued. Clinic escort volunteers can be sued; so can non-medical clinic staff, like janitors or receptionists. Anyone who has donated to an abortion fund, or a pro-choice organization such as Planned Parenthood, can be sued under the Texas law. So can anyone who provides any kind of material support to a patient seeking an abortion, such as a ride to or from the clinic. After an outcry, the Texas legislature amended the bill to create an exception, saying that a rapist would not be permitted to use the law to sue the providers who gave his victim her abortion. But the law only applies to those men who have been convicted of rape. In Texas, 91% of rapes go unreported.

If left intact, the law would not only force Texas women to remain pregnant against their will; it would also empower any misogynist or anti-choice person to impose their bigotry on Texas residents through frivolous and harassing lawsuits. Hopefully, courts will throw out the civil suit provision. If they don’t, free speech in Texas will be severely curtailed.

For the most part, these bills have functioned as a grim kind of misogynist political theater, deliberate messaging exercises that don’t really go anywhere. But that might be changing. Last week, the supreme court agreed to hear a case challenging a Mississippi law that bans abortion at 15 weeks of gestation. The central question in that case will be whether pre-viability abortion bans really are constitutional. If the court rules in favor of Mississippi – and they appear likely to – abortion bans like the one that Texas just passed will become legal. And the falsely named “heartbeat bills” will go from a performance of misogyny, to an enforcement of it.