By Chiara Cordelli and Aziz Huq
Texas’s new abortion law subjects women to heightened surveillance and the whims of private parties. If the US Supreme Court upholds the law, it will set back gender relations to an era that precedes the living memory of most Americans.
In 1984, the late US Supreme Court Justice Ruth Bader Ginsburg gave a lecture on why Roe v. Wade, the Court’s 1973 decision recognizing a constitutional right to abortion, was wrongly decided. The case, she explained, should never have been framed as a matter of privacy or reproductive choice alone: Abortion was at bottom a question of gender equality.
Thirty-seven years later, Texas is proving Ginsburg’s point with its draconian and potentially transformative abortion law. If the Supreme Court upholds the law – it just heard oral arguments on whether to permit two legal challenges to proceed – it will set back gender relations to an era that precedes the living memory of most Americans.
The Texas law, Senate Bill 8 (SB 8), doesn’t just ban abortion after six weeks. It also empowers ordinary citizens to sue anyone who aids or abets an abortion: an employer whose paycheck is used to fund it, a driver who gives someone a ride, or a parent or partner who lends a shoulder to cry on. Liability requires no evidence of intent. The taxi driver who unwittingly takes a person half-way to an abortion clinic is subject to a minimum $10,000 fine. The Texas law is likely to be a model for abortion regulation if the Supreme Court uses the challenges to it to scale back Roe. Florida and Ohio are already champing at the bit to enact laws permitting analogous private “remedies” to curtail abortion.
Predictably, the Texas law has already sparked intensive surveillance of abortion providers. But SB 8 will likely have a wider and more insidious consequence if it is upheld. It will subject women to a life of vulnerability and fear vis-à-vis every possible plaintiff authorized to sue – which the law defines as almost everyone.
This directly affects not only reproductive choice. It also creates, in three different ways, a relation of dependency, and ultimately subordination, for women. It leaves them in an inherently unequal and degrading condition – an outcome that is largely independent of the law’s effects on abortion.
For starters, SB 8 will elicit intrusive surveillance of women by employers, merchants, and ordinary ride-share drivers, pharmacy clerks, and bank employees. Under SB 8, all of these people suddenly have a pecuniary interest in knowing whether women are pregnant before helping them. Strangers, no less than close friends, will have a material interest in knowing about a person’s sex life. The law thereby jeopardizes women’s hard-won sexual privacy, whether they are pregnant or not. This loss of privacy about intimate sexual and bodily decisions is likely to be especially profound for poorer and socially marginalized women, who depend disproportionately on interactions with others in their daily lives.
Moreover, SB 8’s financial incentives are likely to prompt greater digital surveillance by firms wishing to avoid liability, as well as more aggressive exploitation of Big Data to discern women’s reproductive status. Many firms already have extensive workplace surveillance systems (often expanded during the pandemic) that can gather evidence of pregnancy. Others have wellness programs that capture data on movement, body mass index, and other biological indicators from which pregnancy can be inferred. Risk-averse employers can easily retool these data-heavy workplace monitoring systems to detect pregnancy.
The Texas law thus gives private actors both the license and the financial incentive to exercise a degree of control over women’s bodies and sexual privacy that they cannot exercise with respect to men. This also affects transgender people, who may have safety-related reasons to want to conceal their sex in the workplace, and who are now less able to keep their identity private.
The second effect is even more intimate. Crossing the threshold of the home, SB 8 strikes directly at the emotional support and trust that family, marriage, and partnership are meant to provide. A woman who tells a parent or partner that she may be getting an abortion risks making that person financially liable. In addition to robbing women of sexual privacy, SB 8 thus unravels the bonds of love and care that sustain many of us and give our lives meaning.
Friendships will also be compromised. What if a woman asks a friend to borrow money or for a ride to neighboring Oklahoma? Must the friend now ask if it is for an abortion? Contrary to the Biblical injunction, SB 8 makes everyone their sister’s keeper – but in an iniquitous and selfish way.
Finally, and most worryingly, SB 8 has no exception for rape. According to the law, a mother who drives her daughter to a clinic can be sued, but a rapist cannot be. Texas Governor Greg Abbott has said that a rape exception is unnecessary because rapes are always prosecuted. This would be absurd if it was not so horrifyingly wrong. Nationally, a majority of sexual assault victims never even report the crime to law enforcement officials. Texas is no different.
SB 8 will make the underenforcement crisis worse – possibly a lot worse. Because the law makes it costly for women to share confidences, including with family and close friends, it increases pressure on them to remain silent after experiencing sexual violence, making them even more unlikely to report it. Perversely, the law thus creates an incentive for male attackers to induce a risk of pregnancy as a way of silencing their victims.
The law leaves women in a compromised, subordinate condition, even less free than before, compared to men, to live without heightened surveillance and systematically and uniquely subjected to the whims of other private parties. What Jacqueline Rose of the University of London’s Birkbeck Institute for the Humanities has said of sexual harassment of women is true of SB 8 as well: It “isn’t just to control women’s bodies but also to invade their minds.”
We believe that the aim of SB 8 goes still further. It is intended to confine women to an inferior station in society. Ginsburg was right: the right to reproductive freedom is essential to the equality of women.
This article has been republished through a partnership with Project Syndicate, which produces and delivers original, high-quality commentaries to a global audience. It features exclusive contributions by prominent political leaders, policymakers, scholars, business leaders, and civic activists from around the world, providing news media and their readers cutting-edge analysis and insight, regardless of ability to pay.