The ‘evil brilliance’ of the Texas abortion laws

From this comfortable distance, the missives from Texas – home to the death penalty, rattlesnakes and Ted Cruz – are typically met with horrid fascination and smug relief.

We should have more of the former and less of the latter when it comes to a new law in the Lone Star State that effectively bans abortion, which arguably isn’t even its worst feature. The Texas Heartbeat Act showcases the creativity, shamelessness and tenacity of the reactionary right. The response to the Act also showcases the muddled weariness of feminism and the “left.” Australia is not immune from either trend, so we ought to consider ourselves warned.

Abortion rights supporters gather to protest the Texas law. Credit: AP

The law passed by Texas’ Republican-dominated legislature bans abortion once embryonic cardiac activity is detected, which is usually around six weeks. About 85 to 90 per cent of abortions in Texas take place after this period.

But the law’s evil brilliance is in the way it outsources, and privatises, enforcement. It empowers private individuals from anywhere in the country to sue anyone who “aids or abets” an abortion, such as doctors, nurses, a woman’s friends or family, even the Uber driver who transports the woman to the clinic.

Those found to have aided and abetted can be fined $US10,000 ($A13,600) – a sum that gets paid to the plaintiff, making it akin to a “bounty”, critics say. Successful plaintiffs can recover their legal costs, but not successful defendants.

The law is a licence for vigilantes and trolls to harass women second-hand through the courts. Such legal trickery around enforcement has already given the Republican-stacked Supreme Court a pretext for knocking back an emergency appeal to stop the ban on the grounds it violates Roe v. Wade.

US Attorney-General Merrick Garland announces a lawsuit to block the enforcement of a new Texas law.Credit: Bloomberg

A substantive action looms after the Biden administration, succumbing to pressure, last week filed a legal challenge to the ban, arguing it is unconstitutional.

Companies servicing the elites have predictably entered the fray. Software giant Salesforce is offering to help relocate employees out of Texas, ride-share companies Lyft and Uber say they will pay the legal costs of any drivers sued under the law, Match Group, which owns the dating app Tinder, and its rival Bumble, set up funds for employees seeking abortions out of state. Such interventions are as laudable as they are irrelevant.

If, as expected, the law will force clinics to close, the pregnant teenager from a well-off family can afford to travel interstate for an abortion. Not so her poorer sisters, the ban’s real targets.

Nonetheless, the celebrities are agitating on cue, God bless ’em: Pink, Reese Witherspoon, Law and Order SVU actress Mariska Hargitay, famous for playing a detective on the hunt for sex offenders and therefore perfect in this role.

Because while the likes of Vice-President Kamala Harris admirably maintain their focus on the second-wave feminist catch-cry of a woman’s “non-negotiable” right to choose, America being America the fact the Texas ban applies “even” in cases of rape and incest gets feverish attention.

It shouldn’t get any attention unless we’re still invested in moralising narratives about sexually active women. A woman who falls pregnant through rape or incest suffers a horrible individual trauma.

But most unwanted pregnancies arise from ordinary consensual, if sometimes transactional, sex – a fact I could back with statistics, although I think we’re sufficiently grown up down here to settle for commonsense.

If the Texas ban made an exception for rape or incest would that make it more palatable? Arguably it would make it less so for implying a “loose” woman must endure irreversible consequences as punishment for her misdeeds.

Consider the misplaced controversy still swirling around Norma McCorvey, the “Jane Roe” of the landmark abortion rights case, whose substance abuse problems and sexual adventurousness proved inconvenient for feminists wanting to rally around a saintly poster-girl for the cause.

I reckon there’s a broader lesson here for Australian feminists about the dangers of unwittingly promoting puritanical agendas in the fight against sexual violence and gender discrimination.

As for other bad omens from the US culture wars, here’s one I tried very hard not to notice but what to do when even the likes of Politico has? To the bewilderment of old-guard Democrats, some abortion clinics and young activists are “taking pains to avoid gender-specific words,” Politico writes, so as to be inclusive of transgender men and non-binary individuals.

When New York congresswoman Alexandria Ocasio-Cortez lectured Texas Governor Greg Abbott about why most pregnancies go undetected before six weeks, she was careful to use the phrase “menstruating people.” All this being manna from heaven for Christian conservatives eager to depict pro-choice campaigners as alienated from, and contemptuous of, mainstream America.

Undoubtedly, the abortion ban will have a uniquely catastrophic impact on some trans people. And if we’re talking about transgender rights there’s heaps we can say about the unconscionable political war being waged on trans children in Texas and other red states.

But we’re not, in fact, talking about trans rights because trans people account for a minuscule number of “birthing” or “menstruating” people so inclusion, in this instance, amounts to yet more erasure. Of women. Their bodies, their lives and their voices.

The majority of Americans support Roe v. Wade. Just as well. Because when a movement tasked with defending hard-won feminist gains chokes on the word “women” I get the feeling we’re heading over a cliff.

Julie Szego is a regular columnist.