Now that Texas and the nation have had a week to absorb the reality of the Supreme Court overturning Roe v. Wade, lawmakers, activists and legal analysts are trying to figure out how far states can — and will — go to eradicate abortion.
Barring an electoral shock in November, Texas is bound to be a leader, if not a pioneer, with schemes to target abortion medication and deter women from going out of state to terminate a pregnancy. And that doesn’t just mean the Legislature. Ordinary Texans and activist groups could try to police the matter under Texas’ pernicious “heartbeat” bill.
It hasn’t gotten enough attention, but the fact that Texas can now make providing an abortion a crime doesn’t overturn the novel law, enacted last year. Recall that it allows civil suits, brought by just about anyone, against people who perform or aid and abet abortions after about six weeks’ gestation.
It’s new enough that it hasn’t been tested much in court, particularly in light of the Supreme Court ruling and what will follow. But it seems primed as a tool against, say, helping a woman book or pay for a flight to a state that permits abortion, or setting up a website to help find mail-order abortion medication.
Is this the abortion enforcement Texans want: snooping into others’ lives, dragging someone to court for trying to help a friend in need? We think not. And it doesn’t do much to drive home the messages that anti-abortion activists have succeeded with: Life is sacred and those who face a crisis pregnancy need help and compassion, not punishment.
The heartbeat bill needs to go, either through courts deterring civil enforcement of what’s now a criminal act or because the Legislature comes to its senses. (We won’t hold our breath on that one.)
Prosecution of cases will be a huge battleground. Already, district attorneys — mostly in large, Democratic counties — are pledging not to prosecute new abortion laws or do so minimally. Lawmakers will no doubt look for ways around them, including allowing other counties to bring cases or giving the attorney general more authority. The state’s “trigger” law, which will outlaw abortion 30 days after the Supreme Court formally finalizes its ruling, empowers the AG to seek civil fines against those who perform abortions.
The AG’s office has enough on its plate. If lawmakers want it to contribute more to child welfare, how about beefing up collection of child support, which is one of the office’s largest functions?
Republican leaders have increasingly been willing to override local control on topics such as education and police funding, so it won’t be a surprise when they try to empower DAs to meddle in one another’s counties. But how can voters hold another county’s district attorney liable?
Roughly half of all abortions occur through pharmaceuticals, not in surgical suites. Some companies may be reluctant to ship to Texas if harsh penalties are threatened, but many will no doubt persist. Once again, the heartbeat law opens the door to snooping through and punishing private transactions. And lawmakers will no doubt look for schemes to overcome the availability of abortion-causing medication.
Republicans need to hold to their federalist roots, too. Other states will allow abortions, and trying to deter travel or seek extradition of out-of-state doctors betrays such principles.
Legislators would be better off focusing on how to help pregnant women, new mothers and their children. House Speaker Dade Phelan has said he wants to expand postpartum care under Medicaid to a year, among other steps. That’s a bare minimum toward helping poor families.
As with most of our political debates, the war over abortion won’t end despite one side’s huge victory. Legislators need to reckon with the post-Roe world and what Texas women and families need more than they focus on desperate mechanisms to eradicate abortion.
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