This past week, the Supreme Court upheld a shocking law in Texas, banning abortions after six weeks including in cases of rape and incest. Depending on how you feel about abortion and a woman’s right to choose, you may see this as a fantastic or terrible policy. Abortion is a contentious issue in America that has us just about perfectly divided, with 49% of people polling as pro-choice, 47% as anti-abortion in 2021. But whether you are fiercely pro-choice, or fiercely supportive of banning abortion — you should be shocked and outraged by the undemocratic nature of this law, the way it turns neighbor against neighbor, and how it provides a bizarre economic incentive to do so.
The law invites citizens to sue each other for a minimum of $10,000 if they suspect someone of “aiding and abetting” an abortion after the six-week cutoff. It sets a dangerous precedent for any number of social issues, by putting money not just into politics, but into actual policy.
As Americans, it’s ok for us to fight about our policy positions, but we should fight fair. Whether such a structure is applied to abortion, gun control, environmental regulations, or any number of contentious issues, it’s highly problematic in its circumventing of the Supreme Court, and its tying of dollar signs to the enforcement of a law. In their stated attempt to protect souls, advocates for this law are selling the soul of America.
How the Law Works
The law prohibits abortions after six weeks, but instead of making participating in abortion a criminal offense, it makes it a civil offense with a “bounty hunter” provision. This pushes enforcement of the law onto private citizens who are allowed to sue anyone they view as “aiding or abetting” access to an abortion for $10,000 in damages per abortion, plus the payment of all legal fees. If the defendant loses, they don’t get any of their fees covered, so they lose either way.
$10,000 may not seem like a life-changing amount. But in Texas, the minimum wage is $7.25/hr, the equivalent of $15,080 annually. So one could work full-time for an entire year, or try to find just three people to sue — and earn double the minimum wage. It’s a strong enough incentive to encourage neighbors policing neighbors and sounds much more like something derived from the 1980s USSR than 2021 America.
Defendants are defined extremely broadly — it can include someone “regardless of whether the person knew or should have known that the abortion would be performed.” This could include, for instance, a rideshare driver who doesn’t know that the house they’ve dropped someone off at is actually a makeshift abortion clinic.
We can only expect this to occur more often, as we’ve seen that in countries where abortions are prohibited, they simply move underground and become more unsafe for women. The World Health Organization estimates that 25 million unsafe abortions are conducted each year — currently, the vast majority in Central Asia, Latin America, and Africa, but it’s sadly easy to anticipate that North America will be higher on that list, soon. The WHO very clearly states, “Restricting access to abortions does not reduce the number of abortions.”
And as we know too well from American history — neighbors policing neighbors tends to end with disastrous consequences for communities of color, and especially in the case of low-income families without legal resources to protect themselves. In addition to having a chilling effect on individuals seeking safe abortions, afraid of being sued, reproductive health clinics are now cutting back on their services — which may also mean not just fewer abortions, but less cervical cancer screenings, less breast exams, and perhaps most ironically, less prenatal care. This in turn is even more problematic for low-income patients who may be more likely to turn to clinics for care than to traditional hospitals.
Running Around the Courts Hurts Everyone
This law was constructed specifically as a slap in the face of the Supreme Court. Roe v Wade, adjudicated in 1973, set that no government shall prohibit abortions earlier than “fetal viability,” defined as approximately 22 weeks. If a state or local government attempts to do so, people or organizations can sue that government entity, which has generally resulted in the Supreme Court shutting laws down that try to restrict access to abortion rights.
In this case, rather than government officials enforcing the law, private citizens are expected to via civil lawsuits. Hence, the Supreme Court found, in its majority opinion, that it essentially didn’t have the ability to restrict these sorts of civil suits at this time. However, they could at some future moment, or could ultimately deem a government official responsible in the right circumstance. So to the consternation of some anti-abortion activists, the Texas law was not a full take-down of Roe v. Wade.
But it was an effective run-around that sets a dangerous precedent, and one that actually may hurt conservatives more than liberals if replicated across the country. It expands how “standing” is defined in civil suits in a way that could impact any number of issues. As David Mastio noted in USA Today, “gun rights could be lost next.” He specifically wonders, “…Consider New York, where the legislature favors restrictions on the Second Amendment. Could it outlaw firearms by deputizing any New Yorker to file million-dollar lawsuits against gun owners in the state? Would that allow New York to ‘avoid responsibility’ for ignoring the right of the people to bear arms despite clear Supreme Court precedent?”
Let the Court Do Its Job
It’s notable that the Supreme Court’s decision in Roe v. Wade wasn’t based on any particular moral stance about abortion: it was based on the right to a woman’s privacy guaranteed by the 14th Amendment and equal protection under the law. Privacy and individualism are typically held up as conservative values, which ultimately should apply here. Additionally, respect for judicial precedent is a strong conservative value, that has been noted by justices like Roberts in his deciding vote on a Louisiana abortion case.
Constitutionalists should let the court do its job, and interpret the rights instilled by the founding fathers. These rights have been updated of course over time of course, given that those “fathers” excluded women and people of color, who make up the majority of America — and thus led to revisions to the constitution like the 14th Amendment to better protect all citizens.
It is difficult to pass an amendment to the constitution: only 27 have been ratified out of over 11,000 proposed in US history. And that’s how it should be. Democracy is slow and steady work.
The Broader Economic Context
It’s hard to talk about abortion and reproductive health without spending a moment on the economic context (this is Forbes.com, after all). For countless women, unplanned and unwanted pregnancies prove to be a challenge to their meaningful engagement in the workforce and ultimate economic autonomy. McKinsey has estimated that globally, women not being able to engage as they would like in the workforce costs the world economy $12 Trillion a year in GDP. As Caitlin Myers, professor of economics at Middlebury College, told CNN Business, “About three-quarters [of people seeking abortions] are low-income, about half already have children, and more than half report recent disruptive life events such as losing a job or breaking up with a partner.” Denial of abortions increases the likelihood of debt, bankruptcy, and evictions for those with already-precarious economic lives — dampening the financial health of the American economy as a whole.
I am strongly pro-choice and believe that any attempt to deny women and families the right to chose how and when to build their family flies in the face of traditionally conservative values like individualism and minimal government regulation. And yet even those who are pro-choice tend to forget to advocate for the economic rights of women — particularly women of color and trans people — and how economic stability creates more spaciousness for the fundamental choice of when and how to form a family. Being pro-choice should mean it’s equally easy to have or to not have a child at any moment in time, and that’s about both reproductive justice and economic justice.
The debate on the table today, though, is much broader than one’s stance on abortion rights. What’s most immediately at hand is an undemocratic law that is seeking to dismantle the checks and balances of the US government and use the power of money to enforce policy. It’s a law that may be replicated across the country — unless we as citizens decide we care more about upholding America’s democracy more than any one particular policy issue, and commit to fighting fairly for the issues we care about.
Thanks to LeAndre Douglas and Jasmine Rashid for their contributions to this piece. Full disclosures related to my work available here. This post does not constitute investment, tax, or legal advice, and the author is not responsible for any actions taken based on the information provided herein. Follow me on Twitter or LinkedIn. Check out my website or some of my other work here.