In their crusade against bodily autonomy and women’s (and any people capable of giving birth’s) rights, the GOP in Texas have passed a law restricting abortion drastically, which went into effect yesterday (Sept. 1, 2021). Here’s why this law, and the legal challenges surrounding it, matter a whole lot more for everyone in the US than you might think.

If you aren’t up to date on your Texas legislation, this abortion bill, or SB8, puts a ban on abortions after a “fetal heartbeat” is detected, which is usually around the six-week mark. That’s not a very big window, especially considering that by the time someone misses their period and takes a pregnancy test, they could already be four weeks pregnant. So they realistically have two weeks to make sure they’re pregnant, figure out the logistics of an abortion, and get the abortion, all after making a decision more difficult than I can imagine.

The term “fetal heartbeat” is also extremely misleading. It’s defined as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart.” But that’s not a real heartbeat. It’s just electrical activity where the fetus’s chest will be. The heart hasn’t even formed by this point in the pregnancy. It’s obviously just a buzzword to falsely signal the “life” part of “pro-life,” but what else is new?

The only exception provided by the bill is if a physician believes the pregnancy puts the mother’s life at risk or would lead to a “substantial and irreversible impairment of a major bodily function.” The problem here is that there are many risks involved in a pregnancy that aren’t as drastic, but still impactful on the mother’s life. This description in SB8 is also open to broad interpretation, which is designed to force providers to be conservative in their use of this clause, lest they face the legal wrath of over-zealous Republicans.

But, the devil is in the details, and they’re what make this bill truly evil. The actual prohibitions in SB8 make it unique in the world of abortion bans. Someone is in violation of the law if they perform an abortion. Okay, that makes sense. You’re also in violation if you “knowingly aid or abet” an abortion, including paying for it “through insurance or otherwise.” Oh, and if the abortion is completed, you’re in violation even if you didn’t know you were aiding and abetting an abortion. If you take an Uber to get an abortion in Texas after the six-week mark, a strict interpretation of this law means that Uber driver could get sued. But the real kicker for me is the last bit. You’re in violation of SB8 if you “intend to engage in the conduct described” previously. So I guess we’re doing thoughtcrimes now. They’ve already got the Ministry of Truth up and running, after all.

Let’s go back to our Uber driver. We’ll call him Greg Abbott. Greg miraculously picks up a passenger in his car and takes them to a clinic where they get an abortion. Greg didn’t know this, he just followed Waze to the address while doing nothing to stop the spread of COVID in his state. But now Greg is being sued for violating SB8. He fights the suit in court, but eventually loses. So what’s the penalty? Well Greg now owes the prosecution at least $10,000 for each abortion Greg performed or aided and abetted. Oh, and he also has to cover the legal fees of the prosecution.

So that’s nuts.

But now let’s say that Greg hired a really good defense attorney, who ends up winning the case for Greg. Now the prosecution owes Greg legal fees, right? It’s only fair, isn’t it? Nope. Greg gets nothing but a hole in his wallet and a sour taste in his mouth. The bill explicitly states that only the prosecution can be awarded attorney’s fees, not the defendant. That’s one more card in the stacked deck for the fascists.

As a quick aside, I know my example is hyperbolic. This probably would never happen in reality. But the fact that it could shows just how fucking crazy this bill is.

Anyway, you might be wondering who actually sued Greg and took his money. Well as long as you aren’t a government official, it could have been you! That’s right, “Any person, other than an officer or employee of a state or local governmental entity in [Texas]” can sue Greg. The state of Texas has essentially put a bounty on abortions that any private entity can claim. Barring state officials from enforcing the law might seem weird, but it’s actually a very clever way to make SB8 harder to fight. By putting the enforcement of the law into private hands through civil suits, SB8 can’t easily be struck down by existing court decisions like Roe v. Wade, which protects abortions from excessive governmental restriction. It doesn’t apply in private suits.

This loophole is already bearing fruit. Late last night, the Supreme Court decided not to strike down SB8. They voted along party lines, of course, with Chief Justice Roberts siding with the liberals in dissent. Some early challenges in state courts have also been struck down by the conservative higher courts in Texas.

SB8 employs tricks that, as far as I know, are completely novel for ridiculously bad-faith laws. It just goes to show that the GOP really is good at politics in the worst way. I’m guessing that the bill will only spawn more like it across other red states, particularly thanks to its very early legal successes while other, more traditionally repugnant laws in other states have been delayed by the courts.

So what’s next? What can we do? Well, I have some suggestions for you, rhetorical question asker. A civil suit brought up on SB8 can be challenged and eventually brought to the Supreme Court. Depending on the specifics, a ruling then could overturn the whole law and bolster the precedent set by Roe v. Wade. That’s a waiting game, though, and a bit of a longshot. As I mentioned, there are other abortion bills in red states that have the potential to be defeated. Supporting organizations like the ACLU helps make sure those legal battles can continue.

The ideal solution would be a federal law protecting abortion rights, which both Biden and Pelosi have come out with renewed support for. But, like all other federal legislation right now, that hinges on abolishing the filibuster and breaking the super majority, which Biden is a bit less enthusiastic about. Continuing to pressure Biden and the rest of the Democrats to really hammer that issue might be our most effective course of action.

If you have any questions or comments about this, send me a message. I’m happy to have a chat. Thanks for reading.