05 SEPTEMBER 2021
“‘Texas will always defend the right to life,’ Governor Abbott tweeted, on the day that S.B. 8 went into effect — approximately two weeks after he had contracted COVID, received treatment in the form of an antibody cocktail tested on cells derived from aborted fetal tissue, and recommended that all Texans with COVID do the same.”
Medical evidence shows that each year north of 32,000 pregnancies in the US result from rape, and rape victims, studies suggest, are more likely to become pregnant than women who have consensual sex. I’m guessing a disproportionate number of those pregnancies are in Texas.
Roe v. Wade recognizes that the Constitution protects the privacy rights of women to make their own reproductive decisions, including whether to terminate a pregnancy. The government acquires an interest in pregnancies over time and as the fetus approaches viability.
La Femme Qui Pleure Two-and-a Half, Oil on Masonite, 20" x 48", 1993, Richard J Van Wagoner, Courtesy of Helen Bero-Van Wagoner and Richard A. Van Wagoner** (previously posted in https://richardvanwagoner.medium.com/1-march-2017-35f8f4cd9621 and http://lastamendment.com/2017/02/26/last-amendment-vii-2/ PENCE: “‘CHOICE’ IS NOW LIMITED TO VICTIMS OF LEGITIMATE RAPE”)
Texas Senate Bill 8 (SB8), known as the Texas Heartbeat Act, creates a private right of action to do indirectly what the state, at least for now, is constitutionally prohibited from doing directly: interfering with women’s right to make personal, private decisions relating to reproduction.
Under SB8, “a physician may not knowingly perform or induce an abortion of a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required [by law] or failed to perform a test to detect a fetal heartbeat.” The only exception to that prohibition is a medical emergency as defined by SB8 for which rape and incest do not qualify.
The Constitution prohibits the government — the state in this case — from violating a person’s constitutional rights. Private citizens are under no such proscription. Texas therefore creates a law it cannot legally enforce and then purports to wash its hands by, in effect, deputizing an army of private enforcers to carry out its will. To do so, however, the private enforcers must use an arm of the state — the courts — and a mechanism create by state statute — a private lawsuit not otherwise available — to carry out the state’s goals.
“[T]he requirements of this subchapter shall be enforced exclusively through private civil actions . . . . No enforcement of this subchapter, and no enforcement of [a criminal violation] in response to violations of this subchapter may be taken or threatened by the state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person . . . .”
Private enforcement, with a $10,000 bounty, is accomplished as follows:
“Any person, other than an officer or employee of the state or local governmental entity in this state, may bring a civil action against a person who:
(1) performs or induces an abortion in violation of this subchapter;
(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or
(3) intends to engage in the conduct described by Subdivision (1) or (2).
https://legiscan.com/TX/text/SB8/id/2395961n (creating a cottage industry of vigilantism against . . . thoughts. See We are Becoming a Nation of Vigilantes, Jon Michaels and David Noll, September 4, 2021, https://www.nytimes.com/2021/09/04/opinion/texas-abortion-law.html?referringSource=articleShare)
In my view the financially incentivized surrogate army would be found to have aided and abetted in doing indirectly what the Constitution prohibits the state from doing directly. That would likely turn them into “state actors” and their conduct “state action,” rendering the law unconstitutional: state action cannot be used to violate the Constitution. The law has several other flaws, constitutional and otherwise. But the intended, overwhelming chilling effect serves its purpose.
Why not sue the state to prevent the law from going into effect and being enforced while the courts evaluate the myriad constitutional issues? That was the pretextual hook on which the Supreme Court’s shadow majority declined to enjoin the law from going into effect. The law’s drafters cleverly granted immunity for state actors from suit. More significantly, however, because SB8 is subject to exclusive enforcement by private actors and not by the state, identifying a government person or entity to sue to prevent its enforcement is difficult.
The law would likely have no chance of survival if put to a legitimate test in an actual case or controversy before a competent judge. Who among you, however, is interested in becoming the test case, under threat of having to pay a bounty to private enforcers on top of paying both sides’ legal fees? By then, the conservative justices will have gutted most of the remaining protections of Roe. In her dissent to the shadow ruling, Justice Sonia Sotomayor wrote, “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
In today’s New Yorker, Jia Tolentino writes of SB8’s devastation to patients, three fourths of whom are “people of color; around sixty percent already had children, half did not have paying work, and more than forty percent were uninsured.”
“ . . . A year and a half ago, Abbott seized on the opportunity provided by a global pandemic to make abortions more or less impossible to get in Texas, especially for the poor, by designating most of them as nonessential medical procedures, which were suspended, owing to COVID. . . . Fund Texas Choice, which funds and arranges travel for Texans seeking abortions . . . was sending many patients to New Mexico, but New Mexico required a fourteen-day quarantine, an incredibly heavy burden for people who needed to work or care for families or both. (The majority of abortion patients are already mothers.) Travel, of course, involved an increased risk of contracting COVID; Greyhound had cut back on bus schedules; ICE sometimes stopped and searched the buses. Clinics generally did not allow patients to bring a support person, on account of the pandemic.
“Many of these obstacles — the difficulty of travel, the shifting logistical restrictions, the impossibility of arranging child care — were already familiar to low-income women who sought abortions in Texas. (Nearly half of abortion seekers live below the poverty line.) Now they were also a reality to more affluent women in the state, most of them white. ‘What we see in Texas is coming for the rest of the country,’ Rodriguez told me back then. The ban was lifted in late April of 2020, but it had been a preview of a future without Roe. Now the state is getting another one.
“ . . . “The majority of Texans will not be able to travel out of state to obtain abortion care,” Mehl said. ‘We know this from experience. Those with means will be able to go somewhere else, and the majority will be forced into parenthood.’ . . .
“ . . . [Jane’s Due Process] frequently works with ‘foster youth, youth in immigration detention, youth with incarcerated parents.’ In most cases, these were people in ‘dire situations,’ for whom leaving the state is not an option. Jane’s Due Process had clients who’d secured a judicial order allowing them to get an abortion, but who were past the six-week mark, and had no idea what to do. [Its executive director] suspected that the teenagers who would normally be calling the hotline had resigned themselves to becoming parents against their will.
“ . . . Texas Right to Life and other groups have encouraged people to donate to crisis-counselling centers as a way of showing the world that pro-lifers care about pregnant women, and the Texas legislature recently allocated a hundred million dollars to an old state program called Alternatives to Abortion, which furnishes parenting classes and supplies to expectant and new families. But that program has repeatedly drawn criticism for its operational opacity. And neither initiative will touch on the aspects of existence in Texas that endanger the lives of those who have already been born: that the maternal mortality rate is double the already shameful national average; that the uninsured rate is the highest in the country; that so many children live in poverty; that people are allowed to carry guns in public without a permit or training in a state with upward of thirty mass shootings a year.
“ . . . Abortion is common and safe, and the right to get one is consistently supported by a majority of the American public. And yet the anti-abortion movement has been on the offensive for decades, while many pro-choice people have stayed in a defensive posture, leaning against the fragile safety net of Roe v. Wade, which has never sufficiently protected abortion access for the poor and otherwise marginalized. The persistent and profound endangerment of the right to an abortion is much bigger than Texas; it reflects the undemocratic reality of political life in America. Addressing that reality, with major structural changes — an end to the filibuster, an expansion of the Supreme Court — is likely the only thing that can lastingly ameliorate the suffering that has already arrived for pregnant people in Texas.”
I’ve previously posted on this subject. God Willed that Your Father Would Rape You, https://richardvanwagoner.medium.com/god-willed-that-your-father-would-rape-you-b1b8e1692fd
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.