While the main agenda of Republicans in Congress in 2021 has been to do nothing as part of an attempt to stymy every part, Republicans in the states are busy at work. Headlines have appropriately focused on their incessant attempts to avenge and their punishing trans people for the crime of just existing. The changes going on in the states in these areas are devastating to voting rights and gender justice.
Somewhat more under the radar, though, has been the Republican effort to restrict abortion rights. However, just because these attacks have gone largely unnoticed doesn’t mean Republicans haven’t been working tirelessly to do everything they can to make it nearly impossible for people in their states to access abortion care. And, for the most part, they’ve been wildly successful.
In fact, anti-abortion Republicans are setting records for their efficacy in attacking abortion. Previously, 2011, the year the Tea Party took over many state legislatures, was regarded as the worst year for abortion rights since 1973 when Roe v. Wade was decided. In the first four months of that year, states passed 42 restrictions on abortion. Now, however, 2011 is looking like child’s play. According to a new report released last week, 2021 has surpassed the beginning of 2011 by almost 50 percent — with a staggering 61 abortion restrictions passed since the start of the year.
Last week alone saw nearly 30 anti-abortion laws passed. They include an Arizona ban on choosing abortion based on a diagnosis of a fetal anomaly, an Oklahoma law that threatens doctors with losing their licenses for performing any abortion not based on a medical emergency, an Idaho ban on abortions after six weeks of pregnancy (and before many people even know they are pregnant), and a Montana law banning telehealth for abortion pills.
What we’ve seen so far in 2021 is not the end of the story. New Texas restrictions aren’t included in the tally simply because its legislature hasn’t finished yet. So far, 17 restrictions have passed one Texas house and are awaiting consideration by the other. Among the bills being considered in Texas are the standard anti-abortion fare — banning abortions for non-lethal fetal anomalies, making later abortions illegal, banning abortion at six weeks of pregnancy, and requiring intrusive counseling for patients, even if they don’t want it.
But what makes Texas stand out right now is a unique provision that is a part of this effort. Unlike every other state with similar laws, Texas’ law wouldn’t make it a crime to perform a prohibited abortion or threaten a doctor’s license. Rather, Texas’ proposed law would allow any person in the entire country to sue an abortion provider for performing an unlawful abortion in Texas. As if that isn’t unprecedented enough, the law would also allow any person in the country to sue any person who “aids or abets” someone in getting an abortion in violation of state laws.
The effects of this law would be breathtaking. According to a letter, “someone — without even knowing the person who got an abortion — could sue the doctors who provided the procedure, as well as the nurses and clinic staff. Liability would also extend to people who provide logistical or emotional support to someone who gets abortion, which includes family members, clergy, rape crisis counselors. The bills hold people liable if they merely ‘intend’ to help a woman seeking an abortion.”
It doesn’t take long to figure out just how damaging this bill would be if enacted. Why would any doctor perform an abortion in Texas knowing that anyone in the country would be able to sue the doctor for providing care? Or, why would any rape counselor talk with a patient about abortion? Or friend drive someone to an abortion appointment? Or siblings share information with each other about the abortion clinic they recommend based on past experience? The possible lawsuits become endless, especially when you consider that any anti-abortion person in the country could bring the lawsuit, even if they have absolutely no connection whatsoever with the patient, the medical care provider, or even Texas.
Why have Texas legislators written the bill this way? The answer is that they are hoping to make it harder for abortion clinics and doctors to challenge the law. Usually, when laws are challenged, abortion rights lawyers sue the state for enforcing the law. But, with a law being enforced by private lawsuits, stopping the law may require waiting to be sued by a private individual instead of suing the state before the law even takes effect. If passed, this will undoubtedly result in complicated course challenges with unknown outcome because of the novelty of this provision. Regardless, even if that outcome is uncertain, what this bill tells us is that the Republican party concern over frivolous lawsuits was always completely disingenuous and never about a general concern over abusing the legal system. Rather, it was always that they didn’t like the little person suing big businesses; if it’s anti-abortion people suing abortion providers or those who help abortion patients get the care they need, then go right ahead!
With the growing conservative tilt of the federal courts, especially the ones covering the states passing these laws, the new laws that restrict where, how, or why abortion is performed have a fighting chance of surviving court battles. The restrictions that amount to outright bans on abortion are less likely to survive court challenge — that is, unless the Supreme Court overturns Roe. And that’s precisely the goal here. With six conservative Republicans controlling the Supreme Court, the anti-abortion hope is that one of these bills, or similar ones already enacted in past years, will eventually make its way to the Supreme Court to give it the vehicle to end Roe.
No one knows exactly when that opportunity may arise. Until then, abortion is still legal everywhere in the country. But, so far in 2021, anti-abortion Republican legislators are doing everything in their power to make the obstacle course to get one more and more difficult.