On Sept. 1, the Supreme Court, without so much as a hearing on its constitutionality, let the most restrictive ban on abortion in the United States go into effect in Texas. Texas SB8 is a six-week abortion ban that will prevent legal abortions for almost all people seeking them. This ban is also well before the so-called viability test that Roe v. Wade has held in place since 1973, wherein abortions cannot be prohibited if they occur before the fetus could be considered viable.
Abortion advocates have been bracing for the worst since the appointment of Amy Coney Barrett to the court after the death of Ruth Bader Ginsburg. The case Dobbs v. Jackson Women’s Health Organization, which the court agreed to hear last May, has long been considered the case that the court would likely use to overturn Roe. However, the actions of the Court last week regarding SB84 surprised many due to its willingness to ignore precedent and allow a law to stand that clearly violates previous rulings. Chief Justice Roberts, a reliable conservative, even joined the liberal justices in dissent, stating that he would “would grant preliminary relief to preserve the status quo ante—before the law went into effect.”
The Texas law is different than many other laws which have been enacted around the country to challenge abortion rights because, while it bans abortion prior to six weeks, it does not create criminal penalties, and instead creates a civil liability of $10,000 for abortion providers or anyone who assists abortion providers. As has been pointed out, the law is so broad that it could even be used to sue Uber drivers who take a woman to a clinic.
Sara Ainsworth, senior legal and policy director at If, When, How, an organization that provides reproductive justice legal services, told TRNN that she wants people seeking abortions in Texas to understand that the law does not criminalize them.
“For the people who want to abortions in Texas, they need to understand that they are not the target of this law, it is the people around them, and that there are resources online to help them, like needabortion.org, which will help them understand how they can continue to still get their needs met, because abortion is not a crime in Texas, or anywhere else.”
While people seeking abortions are not being criminalized per se, they are are being pushed into self-managed abortions due to the lack of accessibility of other medical care.
“The definition of self-managed abortion is someone who is taking an abortion into their own hands outside of a medical setting [typically by using the most common prescribed “abortion pills” mifepristone and misoprostol]. It’s not really a medical risk; it’s very safe in the grand scheme of abortions especially. But the difference is you did that outside of a medical setting and that’s what can make it punishable,” said Rafa Kidvai, director of the Repro Legal Defense Fund, which covers bail and funds defenses for individuals who are investigated, arrested, or prosecuted for self-managed abortions.
“Despite the fact that abortion is a constitutional right and a human right we have still been seeing since the year 2000 more than two dozen, possibly many more, prosecutions of people who are prosecuted under a range of laws, usually without legal authority,” said Ainsworth. “They are nonetheless arrested, jailed, prosecuted for having ended their own pregnancy or being accused of having done so.”
Ainsworth explains that laws like the one in Texas can lead to pregnant people being criminalized, no matter what the law says. “When you pass a law like this, that just basically deeply, deeply stigmatizes abortions and makes people believe that it is illegal, it casts abortion in a light of, ‘Well, if someone did it themselves, therefore it must be a crime.’ And a prosecutor will then cast around to find some kind of law to fit to the crime that they perceive, even in a state like Texas where criminalization is not on the books,” she said. “It’s the increase in self-managed care and then the stigma that attaches to anyone that manages their own abortion that increases the risk of criminalization.”
Kidvai agrees and points out that politics often heavily influence whether or not a person will get prosecuted for a self-managed abortion. “Prosecutions are about overarching culture, so prosecutors prosecute whatever is politically beneficial to them,” they said.
While most cases of people being criminally prosecuted due to this Texas law, or any other abortion restriction, will end up in dismissal, this does not change the impact that criminalization can have on the lives of the people charged. “So much about criminalization is all the stuff that comes along with it—like being under suspicion, threat of a potential prosecution, an open case can destroy your livelihood even if that case ends up being resolved in your favor,” says Kidvai.
Kidvai also points out that this criminalization is more likely to occur when marginalized people seek abortions than anyone else. “The same people [get prosecuted for self-managed abortions] as get prosecuted for all cases, BIPOC people and poor people,” they said. “Pregnancy makes you vulnerable to prosecution.”