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Texas' anti-abortion law threatens legal rights beyond Texas

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In early September, the U.S. Supreme Court refused to block the implementation of a Texas law (SB8) that criminalizes abortion starting from the moment cardiac electrical activity in the embryo is detected, about the sixth week of pregnancy.

After that point, the medical staff providing the pregnancy termination and any others involved in abetting the crime would be subjected to private enforcement of the law through lawsuits. Anyone —  regardless of their connection to the pregnant person or the “abettors” — can sue them for $10,000 and legal fees. Texas invites private individuals to enforce the law, as a new form of vigilante justice.

This law threatens pregnant people’s ability to choose whether to carry a pregnancy to term in the United States, a right established by the Roe v. Wade decision in 1973.

Roe v. Wade determined that individuals have the right to choose to terminate a pregnancy up until about the 24th week of pregnancy, around the point when a fetus may survive (with significant medical care) outside the womb. While there have been challenges to Roe v. Wade in intervening years, and some states have placed limits on how women can access abortion services, Roe v. Wade stands as the legal basis for access to pregnancy termination in the United States.

What does this Texas law mean for people in Berkeley?

According to the Guttmacher Institute, a research and policy organization focused on reproductive and sexual health, California has the nation’s most choice-supportive laws. This is affirmed in the state constitution that a pregnant person has the right to choose abortion until fetal viability and after that point in order to protect the pregnant person’s own life or health.

In California, private insurers must offer coverage for pregnancy termination, and Medicaid funds can be used to pay for abortions. Access to clinics providing abortions is protected by the state. In other words, here in California, rights to determine whether to terminate or keep a pregnancy are protected. But there are two key reasons for people to keep this development in Texas on the radar.

First, the Texas law was specifically written to evade the U.S. Supreme Court’s purview. Because no Texas state official is involved in enforcing the law, state officials cannot be named as “defendants” in challenges to the law. Therefore, the Supreme Court may decide it is not a legal challenge that rises to the level of their constitutional authority.

This is concerning because it represents a tactical change in how states may write laws on any issue, allowing them to slip past federal oversight of a wide range of federally protected rights.

Second, this law takes a particular embryonic developmental moment, the point at which electrical pulses are perceptible, as a significant marker of personhood. While these pulses have been called a “fetal heartbeat,” the embryo at that point is not yet a fetus, and the heart has not yet evolved.

Many people do not know they are pregnant at six weeks; in fact, doctors count pregnancy as “four weeks in” at the point of a missed period. That leaves only two weeks to confirm the pregnancy and complete the procedure. Minors (who must secure the permission of their guardians, often through the courts); many immigrants; and those with fewer resources, irregular periods, more responsibilities or less physical access to medical providers, will be hit particularly hard by this law.

Not only does the short timeframe mean there are practical obstacles to a pregnant person’s ability to choose termination, but the shift from “viability” to electrical pulses also voids the moral-medical basis upon which an individual’s right to pregnancy termination was based. If this new standard endures, it will shift the legal consideration of how to weigh the rights of a pregnant person with the rights of an embryo, ultimately threatening the California law.

Political struggles over conception, contraception and pregnancy termination are long-standing in the United States. They are parts of a larger struggle over unequal opportunities to live and thrive in a nation that officially embraces equality. These struggles often operate in and through the intersections of gender, sexuality and race.

The Reproductive Justice movement focuses on the importance of ensuring the rights of poor people, BIPOC, immigrants, trans people and people with disabilities to determine for themselves whether to become pregnant, to give birth and to raise children safely to adulthood.

These rights are limited structurally and culturally through myriad policies and practices, and access to pregnancy termination is only one of many important elements in this wider domain.  You can learn more about the fight for abortion rights by watching the documentary Jane: An Abortion Service (available on Kanopy) or by taking a gender and women’s studies course.

Organizations such as Planned Parenthood and The Texas Abortion Fund are accepting donations, soliciting volunteers and finding ways to help pregnant people from Texas get the medical care they need in other states. Many people are also pushing Congress to pass a federal law to codify the rights of the pregnant person to determine the course of their pregnancy at least up to the point of fetal viability.

Abortion rights are a focal point of the political contestation around reproductive justice and gender and racial power, and so, even from the relative distance of Berkeley, this is our political battle.

Written by the faculty of the department of Gender and Women's Studies at UC Berkeley

OCTOBER 06, 2021

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