As of October 8, Texas’ SB 8 law is back in effect. Two days earlier, US District Judge Robert Pitman had paused the law’s enforcement, ruling in favor of a suit the Biden administration brought against SB 8. The 5th Circuit Court of Appeals overturned Pitman’s decision, granting the law temporary reprieve. But the 5th Court’s ruling was an emergency decision, and was explicitly short-term. Biden’s Department of Justice has already appealed the decision.
Growing up in a small town in South Texas, aggressive abortion restrictions come as no surprise to Emerald Belmarez.
Emerald was born and raised in the Rio Grande Valley, the most impoverished region in the state — and the least safe for reproductive rights. Only one abortion clinic serves a population of 1.3 million Texans.
For her entire life, anti-abortion activists have lobbied to limit access to reproductive healthcare, often taking matters into their own hands through protests and camp-outs at clinics. “I have had friends in the past who have been pushed, shoved, yelled at with dirty language while entering abortion clinics. They had people taking pictures of their license plates,” Emerald told The Politic.
Now, Texas has enacted an abortion law that gives the people who protest outside clinics the power to take legal action against those inside.
At midnight on September 1, 2021, Texas’s Senate Bill 8 officially became law, inheriting the title of the most restrictive abortion measure in the nation. The bill was initially passed in May 2021, and was set to go into effect in September. In the days leading up to this deadline, abortion rights groups brought a case to the Supreme Court alleging the law was unconstitutional. In a narrow 5-4 vote, the Supreme Court refused to block the law. The decision was not an affirmation of the law’s constitutionality, but rather a provisional ruling in an attempt to force the lower federal courts to address the complications of the case before it comes to the Court again.
Texas’ SB 8 is unique not only in its restrictiveness — it bans abortions after six weeks of pregnancy, with no exceptions for cases of rape or incest — but in the system of enforcement that it implements. Under SB 8, any private citizen can sue anybody in Texas who they accuse of “aiding and abetting” an abortion performed after that 6-week period.
The ability to sue “anybody” really does mean anybody — from Uber drivers who transport people to clinics to supportive family members, from doctors who provide abortions to people who donate to abortion rights groups online, from next-door neighbors to lifelong friends. By making everyone vulnerable to litigation, the law creates inherent distrust between citizens. The person bringing forward the lawsuit does not need to have any personal connection to or stake in the abortion to sue. If the plaintiff wins, they are entitled to at least $10,000 and are repaid their legal fees. If the defendant wins, they receive nothing — not even reimbursement for their fees.
The law even accounts for possible legal challenges that could result in pauses of its enforcement. If it is temporarily halted then later re-instated by another judge, citizens can sue the aiders and abetters of any abortions provided in the period when the law was on pause. The architects of the law ensured in its writing that it will remain functionally in effect even if it has been temporarily halted.
The enforcement of the bill empowers private citizens as the reporters of any violations, abdicating responsibility from the government to prevent Texans from getting abortions. In fact, SB 8 explicitly bans state officials from suing anyone, ensuring that only private citizens will be accountable for monitoring the actions of others. Many social conservatives have embraced this system of enforcement, hoping to prevent the legal challenges that are usually the death knell to anti-abortion laws.
Republican politicians have been attempting for years,with some success, to gut the Supreme Court’s ruling in Roe v. Wade, which dictated that individuals have a Constitutional right to obtain an abortion, and that the government cannot overly restrict that right. States with conservative governors or legislatures have passed a wide range of policies to limit abortion access, like tying the illegality of abortion to detection of the embryonic heartbeat or forcing people seeking abortions to undergo “training” on alternatives such as adoption. With Texas’ SB 8 bill, anti-abortion advocates may have finally found the winning strategy to subvert the seminal 1973 decision.
By deputizing private citizens as the enforcers of the law in SB 8, many legal scholars have pointed out that Texas has technically not violated the Court’s conclusion in Roe that governments cannot place undue burdens on abortion access. After all, the government is not the one enabled to sue defendants for helping people get abortions.
Matthew Wilson, a professor of political science at Southern Methodist University in Texas, explained that SB 8’s enforcement mechanism of “civil lawsuits filed by private individuals is specifically an attempt to circumvent legal challenges” that would threaten to strike down the bill. To many Texans, the law seems invincible. “It was structured in a way where there would be no way to challenge it in the court,” said Emerald, who now works as a paralegal at a Texas law firm.
Laws that rely on private citizens reporting one another is not a new technique. Statutes prohibiting harassment in the workplace, for example, are usually upheld through civil lawsuits, brought by the victim against the perpetrator or the employer. Anti-discrimination laws, like Title IX, similarly enable citizens to file complaints if they feel they have been the victim of — or witness to — discrimination. David Noll, a professor of law at Rutgers Law School, has spent recent months researching SB 8 and similar bills that place the burden of enforcement on private citizens. According to Noll, “private lawsuits have been crucial to the development of employment discrimination law, and certain aspects of consumer law, and securities law.” SB 8, though, weaponizes private enforcement laws to restrict civil liberties, not protect them.
In recent years, Republican-controlled state legislatures have pushed for bills with this enforcement mechanism in order to marginalize vulnerable groups by enabling private citizens to target them. In the mid-2010s, state legislatures across the country saw a wave of anti-trans lobbying and legislation, often through “bathroom bills” that forbade transgender or gender non-conforming Americans from using bathrooms or lockers in public buildings that did not match the biological sex they were assigned at birth.
These anti-trans bathroom bills are similar to Texas’ SB 8 bill not just in their political goal of controlling the bodies and movements of entire swaths of the population, but also in their enforcement and twisted system of rewards. Most of the proposed policies made citizens partially or fully responsible for upholding them, and students could sue their schools if they saw a trans person violating the law by using the “wrong” bathroom or locker. Many of the bills advocated for $2,500 in damages to be awarded to anyone who sued after witnessing these rule-breaks. Much like SB 8, the anti-trans bills relied on the fear that anyone could sue to scare transgender individuals away from using their preferred bathroom.
This form of state-sanctioned vigilante justice, which incentivizes private citizens to control the bodies of their peers, neighbors, and colleagues with a hefty financial reward, even predates the complicated politics of the 21st century.
In the Antebellum Era, militias made up of white Southern slave-owners emerged as a method of hunting down escaped slaves. These slave patrols received the government’s stamp of approval with the Fugitive Slave Acts of 1793 and 1850, which dictated that slave-owners had the right to search for escapees in other states. Members of these militias flocked to the North to track down enslaved people and return them to their owners for a monetary reward. The militias could also report anyone who attempted to harbor or help escaped slaves, and force them to pay a $1,000 penalty. The financial incentives that were attached to enforcing this system of slave surveillance are eerily similar to the bounties in Texas’ SB 8 bill.
Texas has already seen the galvanization of government-endorsed vigilantism come into full force. Although no lawsuits have yet been brought against someone for aiding or abetting an abortion, tiplines have popped up on websites run by anti-abortion organizations, encouraging users to submit information that could be used as evidence. After Dr. Alan Braid, a San Antonio physician, wrote in an op-ed for The Washington Post that he has continued to provide abortions to Texans, there was a significant increase in pro-life protestors outside his office. Just days after the bill officially became law, an opponent of abortion who protests outside clinics told NBC News that SB 8 “is what we always prayed for.”
Some enforcers have resorted to spamming abortion clinics with false requests for abortions, in attempts to “catch” staff who are still willing to provide or assist with abortions — a ruse intended solely to find opportunities for litigation. Two abortion funds in Texas, Frontera Fund and West Fund, had to stop operating their hotlines because they have been inundated with fake calls and texts that could put volunteers at risk of liability.
Because of SB 8, reproductive services could become enveloped in a surveillance state. Noll explained that “when you think about what’s necessary to file a lawsuit — you have to collect information about other people, you have to engage in surveillance of them.” Supporters of abortion in Texas have already faced infringements on their privacy, even without SB 8. According to Emerald, “Pro-lifers have this database that keeps track of some of the top reproductive advocacy organizations and activists in the Rio Grande Valley. They keep tabs on them, and keep tabs on the women who go into these clinics.” SB 8 makes this aggressive monitoring profitable, transforming knowledge about a pregnant person’s healthcare decisions into a commodity.
Experts believe that the law will discourage pregnant people from confiding in doctors, family, and friends, out of fear of implicating them in a crime. It makes it difficult for those who want abortions to know who to turn to when everyone is a prospective plaintiff. “Anyone can sue, and you don’t know anybody’s kind of stance on particular issues. It makes it harder to know who and who not to talk about these things,” said Emerald.
For Emerald, and likely for many other Texans, the law’s weaponization of widespread distrust between citizens has a painfully personal edge. “Some of my family are pretty conservative and I know that they have the power to go and sue… the providers who are aiding or abetting the process of getting an abortion,” she told me. One of Emerald’s uncles is a conservative Christian who works as a border patrol agent and they clash on nearly every political issue, including abortion rights. The implementation of SB 8 could transform their disagreements from uncomfortable family dinners into punitive legal action.
The threat of lawsuits under SB 8 has already had tangible impacts on abortion access for Texans. “It really does put a crimp in the operations of abortion clinics in Texas,” said Wilson. “They are very wary about operating because of the massive potential liability that they could face.” After the law took effect, Planned Parenthood and Whole Women’s Health, two major abortion providers in Texas, announced that they would comply with the bill and would direct the dozens of clinics under their purview to stop performing abortions if a fetal heartbeat was detected.
Texas’ innovative approach to weakening abortion rights is a blueprint that other Republican-controlled states will likely follow. Just days after the Texas bill became law, The Washington Post reported that GOP officials in seven states had already indicated their intention to pass similar laws. On September 2 — when SB 8 had only been in effect for a day — a Republican state senator in Arkansas, Jason Rapert, published a bill modeled after SB 8, with fill-in-the-blank areas included so that other states could easily adopt the legislation. “The statutes can be literally copied and pasted, with only minor modifications for other states,” said Noll. “I do expect it to spread to other states.”
If bills like SB 8 are adopted across the country, the intimidation tactics that have found a home in Texas will spread with them. The laws will breed an environment of paranoia that overwhelmingly weighs on doctors, volunteers, patients, and anyone tangentially related to the provision of abortion services. “It goes back to the way the bill itself is structured. Anyone — just anyone — can sue, so I think it really brings women stress and increases the distrust that they already have,” said Emerald.
The bill has left Emerald feeling vulnerable and anxious for the future. “If for whatever reason I need [an abortion], I have no support whatsoever,” she said. Millions of people who may need abortions — in and out of Texas — are also afraid. “My story isn’t the only one,” Emerald said. “It scares me because it’s like, who do I turn to? I can’t. I can’t turn to my family anymore, and I can’t turn to my government.”