Jurisprudence

The Sinister Origins of the Texas Abortion Law, and Why Democrats Are So Unprepared to Do Anything About It

Dahlia Lithwick, Michele Goodwin, and Rebecca Traister unpack the history behind what happened this week.

A protester speaks through a megaphone against a majestic view of the Supreme Court.
 An activist protests Texas’ SB 8 speaks outside the Supreme Court. Photo by Drew Angerer/Getty Images.

On the Sept. 3 episode of Amicus, Dahlia Lithwick spoke with Michele Goodwin, chancellor’s professor of law and director of the Center for Biotechnology and Global Health Policy at UC Irvine School of Law, and Rebecca Traister, a writer at large for New York magazine and author of Good and Mad, about the Texas law known as SB 8.* The new law effectively bans all abortions after the sixth week of pregnancy. According to providers, at least 85 percent to 90 percent of abortions in Texas take place after that point. Their conversation has been edited and condensed for clarity.

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Dahlia Lithwick: Michele, this new law chimes in the key of some very, very ugly American history.

Michele Goodwin: Yes, this hearkens back to the Fugitive Slave Act, which provided for citizen participation in the preservation of American slavery. It deputized citizens to surveil, to stalk, to apprehend people who were in violation of U.S. laws by escaping themselves out of the inhumane condition of slavery. There were bounties that were provided for their success in surveilling and successfully apprehending individuals who dared to exercise liberty, autonomy, and freedom.

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When you think about this Texas law, there are certain analogs that eerily resemble that of the Fugitive Slave Act in that it provides for financial remuneration of those citizens who are able to successfully peg someone who has aided or abetted an individual in obtaining an abortion. What this means with the law written in such broad terms is that it could implicate the Uber driver, the Lyft driver, the bus driver, the receptionist who works at an abortion clinic, virtually anybody who has been in the path of a person exercising the constitutional right to terminate a pregnancy. It is a very dangerous law.

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Rebecca Traister: There have been limits on access to abortion, especially for poor women and for Black and brown women, for decades, ever since Roe was decided, thanks to the Hyde Amendment, a legislative rider that prevents anybody who receives federal insurance money from using that insurance money to get abortion, thereby making abortion all but illegal anyway to vast swaths of this country. Many people have remained asleep to this. Abortion has been inaccessible in huge parts of this country for decades, and yet people still go to sleep easily at night thinking, well, there’s law protecting us.

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But the people who have understood the truth of the situation are the activists in the abortion fund movement and in the reproductive justice movement, who have been organizing over years to provide ways for women who’ve been cut off from that access to gain better access, to help them raise the money to pay for procedures that they might not be able to afford, to help them travel and put them up in places that have mandatory waiting periods or to get them out of areas where there’s no clinic or care available into areas where they can get an abortion.

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This law takes aim at those systems of support, those activists who’ve been awake this whole time and have been working to stave off exactly this kind of restriction and this kind of punitive cruelty. This law targets those activists by saying that they are now being made vulnerable, that they are going to be the subject of vigilantism and bounty hunters for doing the righteous work of supporting the people who need the care that they’ve been barred from.

The Democratic Party has refused to acknowledge what the right was doing in building its power in state legislatures, in taking over the court, in moving in this direction. The Democratic Party that was theoretically supposed to be on the side of reproductive rights and autonomy has absolutely refused to fight for them up until as recently as the Amy Coney Barrett confirmation hearings, where nobody wanted to have the fight because the Democratic Party has absorbed an inaccurate and incorrect message that people find abortion icky.

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The Democratic Party has not fought on this, despite the fact that the legality of abortion is actually one of the most broadly popular issues in this country, even in red states. The press would have you believe that the country is irrevocably divided on this, that it’s 50/50, nobody’s ever changing their mind. But in fact, good, smart polling over the past decade has shown that is a myth. Seven in 10 people, even in purple and red states, want abortion to remain legal in some form. And the Democratic Party, despite having that very good, strong evidence in front of them, has refused to fight for abortion rights, for better abortion access.

This administration is the first time since the 1990s that a budget has in its first draft not included the Hyde Amendment. The Democratic Party permitted the Hyde Amendment to be in the budget throughout the Obama administration. The Democratic Party has refused to fight for abortion and in fact has contributed to the idea that there’s something distasteful about it, that it’s a cultural issue rather than a key economic issue.

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Michele, what you think comes next? Florida’s already talking about passing a copycat law. We’re going to see a whole bunch of red states I would suspect within days passing copycat laws. Are we simply going to look at a world in which if you are in Mississippi, if you’re in Texas, if you’re in Florida, you have a right to abortion that you cannot access?

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Goodwin: Yes, we will see those copycat laws, because we also see that the Supreme Court was sending a signal by its failure to act. That failure to act was in fact a very powerful and strong signal from the most powerful tower in the land about the brokenness on this aspect of our democracy when it comes to upholding the types of laws and constitutional protections that will aid women in the furtherance of their wellbeing, of their health, of their privacy, of their autonomy.

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Rebecca, now we have President Biden saying he’s launching “a whole government effort to see how the federal government can respond to Texas.” Is there a whole government effort to be brought to bear? Is there a master plan that I don’t know about that you can share with us?

Traister: No, I don’t think Biden has a master plan, and I’m livid about it. As I listen to Michele talk and think about the history and think about how in so many ways the structure of this particular weird law reverts to such an old American norm, where our economy was built on vigilantism, the Fugitive Slave Act, slavery itself, where the country’s very underpinnings, its economy, its government, everything is built on this institution that relies on controlling Black women’s reproduction, the production of enslaved bodies, and limiting the autonomy of enslaved women. And more broadly, a country that was built on limiting women’s civic participation, including white women’s civic participation, and denied them the vote for a very long time. This is what the country is made of.

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In fact, one of the things that’s happened over the past century and a half is that there have been these enormous movements that have in some cases resulted in increased protections and freedom; some of them judicial, some of them Supreme Court decisions, some of them legislative changes that have built better laws, actions, and expanded freedom. But the fact that they did this suggests we can revert to the norm, revert to the founding principles of this country built on restricted liberty and inequality from which some people will profit and some people will pay. There’s an ugliness in the way they chose to do it.

This is just a short excerpt from the discussion. To hear the full episode, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

Correction, Sept. 8, 2021: Due to an editing error, this article originally misstated that the conversation took place on an episode of Working. It was on the podcast Amicus. 

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