What the Texas Anti-Abortion Law Means for Cal Students

Earlier this month, the US Supreme Court refused to block implementation of a Texas law (SB8) that criminalizes abortion starting when cardiac electrical activity in the embryo is detected, around the sixth week of pregnancy. After that point, the medical staff providing the pregnancy termination and any other people involved in abetting the crime would be subjected to private enforcement of the law through lawsuits.  Anyone — there are no requirements for any connection to the pregnant person or their “abettors” — can sue them for $10,000 and legal fees. Texas invites private individuals to enforce the law, as a new form of vigilante justice.

This law threatens the legal right pregnant people in the United States have had to choose whether to carry a pregnancy to term since the Roe v. Wade decision in 1973.  Roe v. Wade determined that individuals have the right to choose to terminate a pregnancy up until about the 24th week of pregnancy, around the point when a fetus may survive (with significant medical care) outside the womb. While there have been challenges to Roe v. Wade in intervening years, and while states have placed limits on how women can access abortion services, Roe v. Wade stands as the legal basis for access to pregnancy termination in America.

What does this Texas law mean for you, in Berkeley? According to the Guttmacher Institute, a research and policy organization focused on reproductive and sexual health, California has the nation’s most choice-supportive laws, affirming in the state constitution a pregnant person’s right to choose an abortion until fetal viability, and after that point in order to protect the pregnant person’s own life or health. In California, private insurers must offer coverage for pregnancy termination, and Medicaid funds can be used to pay for abortions. Access to clinics providing abortions is protected by the state. In other words, here in California your rights to determine whether to terminate or keep a pregnancy are protected.  But there are two key reasons for you to keep this development on your radar screen.

First, the Texas law was specifically written to skirt the U.S. Supreme Court’s purview. Because no Texas state official is involved in enforcing the law, state officials cannot be named as “defendants” in challenges to the law, and therefore the Supreme Court may decide it is not a legal challenge that rises to the level of their constitutional authority. This is concerning because it represents a tactical change in how states may write laws on any issue, allowing them to slip past federal oversight of a wide range of federally-protected rights.

Second, this law takes a particular embryonic developmental moment, the point at which electrical pulses are perceptible, as a significant marker of personhood.  While these pulses have been called a “fetal heartbeat,” the embryo at that point is not yet a fetus, and the heart has not yet evolved.  Many people do not know they are pregnant at six weeks, and in fact doctors “count” a pregnancy as “four weeks in” at the point of a missed period.  That leaves only two weeks to confirm the pregnancy and complete the procedure. Pregnant people with fewer resources, more responsibilities to juggle, irregular periods, minors (who must secure the permission of their guardians, often through the courts), pregnant people who don’t speak English, those who do not live near medical providers, and low income pregnant people all will be hit particularly hard by this law. But not only does the short time frame mean there are practical obstacles to a pregnant person’s ability to choose termination, the shift from “viability” to electrical pulses voids the moral-medical basis upon which an individual’s right to pregnancy termination was based. If this new standard endures, it will shift the legal consideration of how to weigh the rights of a pregnant person with any rights given through this law to an embryo, ultimately threatening the California law.

Political struggles over conception, contraception, and pregnancy termination are longstanding in the US. They are parts of a larger struggle over unequal opportunities to live and thrive in a nation that officially embraces equality.  These struggles often operate in and through the intersections of gender, sexuality, and race. The Reproductive Justice movement focuses on the importance of ensuring the rights of poor people, BIPOC people, immigrants, trans people, and people with disabilities to determine for themselves whether to become pregnant, to give birth, and to raise children safely to adulthood. These rights are limited structurally and culturally through myriad policies and practices, and access to pregnancy termination is only one of many important elements in this wider domain.  You can learn more about the fight for abortion rights by watching the documentary Jane: An Abortion Service (available on Kanopy) or by taking a gender and women’s studies course. Organizations such as Planned Parenthood and The Texas Abortion Fund are accepting donations, soliciting volunteers, and finding ways to help pregnant people from Texas get the medical care they need in other states. Many people are also pushing Congress to pass a federal law to codify the rights of the pregnant person to determine the course of their pregnancy at least up to the point of fetal viability.  Abortion rights are a focal point of the political contestation around reproductive justice and around gender and racial power, and so, even from the relative distance of Berkeley, this is our political battle.

Written collectively by the faculty of the Department of Gender and Women’s Studies:

Paola Bacchetta
Barbara Barnes
Mel Y. Chen
Patrice Douglass
Minoo Moallem
Courtney Morris
Laura C. Nelson
Leslie Salzinger
Eric Stanley