Commentary: Texas wants its citizens to enforce a new abortion ban, and we should all be concerned

Caroline Petrow-Cohen, Los Angeles Times on

Published in Political News

"This is going to severely limit people's ability to access abortions even before six weeks, because it will isolate patients," said Julia Kay, an ACLU lawyer seeking to block the law. The ban would cut abortion patients off from their support networks and create a public crusade of anti-abortion rhetoric, Kay said.

By encouraging citizens to enforce the ban, Texas has equated abortion regulation to a public and moral duty. Anybody has the right to oppose abortion, but when those individuals form an army of courthouse vigilantes backed by the state, it becomes an unreasonable imposition of their personal beliefs onto others around them. Texas isn't just deputizing its citizens, it's weaponizing them in the fight to eliminate abortion access in the state for good.

This would be especially detrimental for Texas' lower-income communities, Kay said. In particular, individuals from rural communities and communities of color are less able to travel out of state for an abortion and less likely to get quality prenatal care, she said.

Even if the ban is tossed out before September, we can't ignore the disturbing implications that Texas' actions have for reproductive rights and the sanctity of constitutional law.

Anti-abortion activists have been manipulating the legal system for decades. They know they're up against the precedent set in Roe and will do whatever they can to get around it. UC Berkeley School of Law professor Khiara Bridges refers to this mind-set as "abortion exceptionalism," the conviction that, for whatever reason, abortion is a less valid constitutional right than all the others.


The larger danger is that if the anti-abortion movement manages to create a new legal strategy to undermine that right, that strategy can carry over into other areas of federal law. "The anti-choice forces out there are incredibly creative," Bridges said. "But this is bigger than abortion. This is a terrifying precedent to set for any person who cares about constitutional rights."

If Texas successfully insulates SB 8 from judicial challenge by employing the private enforcement approach, then other states can follow that roadmap to target any federal rights they oppose. Imagine restrictions on free speech or religion that can't be blocked in court because they're enforced not by the government, but by ordinary people.

"If it's a red state abortion ban today, tomorrow it will be a blue state gun ban. This ought not to be partisan," said the University of Texas' Vladeck.

The Texas Legislature may or may not be aware of the dangerous vehicle they've created in their desperation to ban abortions. But SB 8 is utterly unconstitutional and fundamentally threatening to our legal system and federal rights. It should be struck down without question, and never attempted again.

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