The Bigger Plan for the Texas SB-8 Abortion Law

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Movie still from Bad Girs, 1994.

In 1973, the United States Supreme Court determined in Roe v. Wade that the Constitution protects a pregnant woman's right to choose to have an abortion without excessive government restriction. Writing for the majority, Justice Harry Blackmun acknowledged that while “the Constitution does not explicitly mention any right to privacy,” a number of prior decisions had found “a guarantee of certain areas or zones of privacy,” that was grounded in several amendments within the Bill of Rights and in the 14th Amendment’s guarantee of liberty.

Following the landmark ruling of Roe, attempts were immediately initiated to chip away at the framework to protect abortion rights in favor of upholding state restrictions on abortion. In Roe v.Wade, the court had declared access to abortion to be a fundamental right, and had determined that states could only regulate abortion before fetal viability if there was a “compelling state interest.”

In 1992, Casey v. Planned Parenthood replaced the previously used “strict scrutiny” standard under Roe, with a new and less rigorous “undue burden” standard. This new standard involved regulating abortion before the point of fetal viability, and hinged upon whether the law imposed an “undue burden” on a woman’s right to terminate her pregnancy.

Movie still of Drew Barrymore in Bad Girls, 1994.

What resulted was three decades of conservative groups and state legislators initiating hundreds of restrictive laws meant to test the limits of the undue burden standard, all while groups like the Heritage Foundation and Federalist Society worked to fill the courts with conservative judges who would be willing to place extreme restrictions on a woman’s right to choose.

All of this hard work on the part of big-moneyed, conservative groups has now come to fruition as one of these latest state restrictions heads to the highest court in the land this fall, before a legal bench that now holds a conservative majority. As anti-abortion proponents use a slew of “heartbeat bills” that limit abortion to six weeks, to attack from the front, lawmakers in Texas have just snuck around to try wildly stabbing at our flanks and the result has been just as messy as we all feared.

Texas Senate Bill 8, or SB-8, went into effect on September 1. While the law appears to be outrageous in so many ways that it seems almost incomprehensible that such a chaotic piece of legislation could be allowed to stand, it seems the second line of defense — the stacked courts — built up by wealthy donors like the Koch brothers has now served its purpose by keeping the law in effect.

If the events of last week hadn’t been such a disaster for the citizens of Texas and beyond, and had such ramifications on the rest of their lives and their legal rights, I would be much quicker to add that this latest round of legal maneuvering involved some truly impressive legal strategy from Republicans. Texas had the votes to make this latest hodgepodge of reproductive bounties viable, but none of that would have mattered had the GOP not secured its allies on the judicial benches at every level to hold the line in the second trimester, by turning their backs and refusing to even hear any legal challenges.

We could easily spend hours discussing the many ridiculous provisions contained in SB-8, and we could spend more time trying to determine how these kinds of mandates can or should be enforced legally. But those kinds of discussions really miss the point and only serve to distract the public from the practical ramifications of enacting this kind of law on average citizens — the chilling effect of fearing criminal prosecution.

The whole purpose of these outlandish new “laws” is to frighten anyone who might be considering obtaining a legal abortion, and any person who might be providing assistance to a woman trying to seek legal medical care. The plan is already working — many abortion clinics in Texas and in other neighboring states, like Oklahoma, say they’re already fielding an influx of phone calls after Senate Bill 8 went into effect Wednesday. Rather than worry about what this new law will mean from a practical standpoint, many women are not taking the chance and are leaving to procure a legal abortion in another state.

This was part of the plan — other conservatively controlled state legislatures are already drafting versions of their own, similar restrictive laws. Imagine the board game Risk, and your enemies moving in on the game board from all sides, until your territory is so small you are restricted to a plot of land the size of Georgia. Then imagine that your entire army has only one abortion clinic that is still functioning and each abortion now costs $5,000. This is where things are headed.

None of this SB-8 nonsense in Texas could work without a strong second string in the Courts at every level. It was not unheard of for Texas legislatures to concoct an outrageous law that will effectively recreate the Wild West on the abortion front, but it is unheard of for every court and every appellate court, all the way up to the Supreme Court, to refuse to hear a case involving the need for very urgent injunctive relief.

Forty years of planning, and money, and lies from predominantly white men in America paid off in full last week. Their expensive brigade of judicial storm troopers, who were to be installed, ready, and waiting to turn their backs on justice has finally come to fruition. Moreover, this latest legal strategy, meant to circumvent the rights of women in this country, will now serve as a template for conservatives to thwart anything that displeases them or hinders their access to more money.

Civil Rights on every level will be under attack from the model used here by Texas and conservatives will have another way to attack Voting Rights, Equal Marriage, Universal Healthcare, and anything else that they deem to be a threat to their wealth and monopoly on power. As angry as I am as a woman to have this test case used against my gender in the ongoing attempt to control our own bodies, I am not surprised that we continue to be targeted, because we always have been, and I am used to it.

This latest attempt to install even more fear into the lives of American women is nothing new and many of us are more tired from the many attempts than we are afraid of the neverending threats. The people who should be most afraid now are the men in this country — who are not insulated by their wealth or prominence — because this is all just a test run for controlling more aspects of the economy, and you guys are next.

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Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.

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