From Abortion to Voting, Texas Is Set on Making It Illegal to Help People
The Texas Legislature’s war on women’s health reached its dystopic Catch-22 phase last week, when the U.S. Supreme Court greenlighted the state’s abortion-abettor bounty-hunter law S.B. 8, despite that law’s “flagrant” and “patent” unconstitutionality (per Justices Sonia Sotomayor and Elena Kagan, respectively). S.B. 8 was explicitly designed to thwart judicial review, and the Supreme Court saw that and apparently was fine with it. Somewhat lost in the subsequent fog of national and international outrage was Texas’ other big legislative victory: the passage of S.B. 1, the bill targeting minority voting rights and enabling future episodes of partisan election theft. That voter suppression bill was big news very recently: You may recall Democrats scrambling to flee Texas to try to rob state Republicans of the requisite quorum to pass S.B. 1, but when their parliamentary fireworks inevitably fizzled out, Texans not only found themselves living in the New Gilead, but with diminished power to vote their way out of it to boot.
It’s hardly a coincidence that these two legislative assaults came together. S.B. 1 was being passed as S.B. 8 was going into effect. Texas Republicans are acutely aware that as their numbers contract demographically, they can’t continue to rule over racial and ethnic minorities, or pass unpopular laws like S.B. 8, unless those minorities are systematically discouraged from voting. S.B. 1 helps laws like S.B. 8—laws that are wildly out of sync with public opinion and polling—to exist.
S.B. 1 and S.B. 8 not only are symbiotic, but they also share some frightening symbolic similarities. Both confer some of the state’s enforcement and police powers upon random citizens seeking to target minorities. S.B. 8 does so by offering $10,000 (at a minimum) bounties to anyone willing to prosecute those who help women obtain an abortion, and S.B. 1 does so by practically ensuring the harassment and intimidation of voters and ballot counters in order to combat nonexistent voter fraud. If you thought the 2020 election was acrimonious, Texas and the states that will soon fall in line behind it have bad news for you in the many Novembers to come.
The Supreme Court has been a willing accomplice in both assaults. A majority let the abortion rule stand by pretending S.B. 8’s novel jurisdictional questions could and should render Roe v. Wade moot for the time being. In that case, the majority of the court was in essence saying, “Sure, I’ll grant you that the house is ablaze, but that fire extinguisher didn’t come with instructions. Let’s table this for later.” (On Thursday, the Justice Department filed suit against Texas to enjoin the law.) As others have pointed out, it’s impossible to imagine Justices Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cavalierly permitting random citizens to enforce unconstitutional gun laws against their neighbors.
S.B. 1, for its part, which President Joe Biden has labeled “un-American,” is a vicious blend of some of the most oppressive and discriminatory ideas any state has dared to entertain with respect to quashing broad voting rights. It imposes stringent restrictions on absentee ballots and voting by mail. It limits the times for voting, complicates registration, and constrains other mechanisms that helped Biden secure votes in 2020. And similar to Texas’ equally regressive abortion ban, it imposes draconian penalties on those who help others vote. Perhaps the most viscerally galling provision of Texas S.B. 1 is the subsection that mandates the “free movement” of partisan poll-watchers, setting the stage for physical conflict after, say, a self-deputized patriot gets it into his head (it’ll almost certainly be a man) that someone moved a box of uncounted ballots where he didn’t think it should go and he’s going to save Democracy right here and now, dammit. The coming lunacy will rival the lunacy we saw play out in the aftermath of the 2020 election in swing-state recounts. And this time it will all be livestreamed, by statute, so we can all referee from our couches about where ballot boxes should and shouldn’t be.
It’s been widely noted that one of the cruelest aspects of S.B. 8 is that it sets its sights not on the woman seeking to terminate an unwanted pregnancy, but on anyone who “aids and abets”—indeed, anyone who “intends” to aid and abet a pregnant person in considering options. The object here is to isolate the most vulnerable person at a vulnerable time, and to chill anyone in the vast network of potential helpers and advisers from offering guidance. The vigilantism rewarded in S.B. 1 similarly creates dire criminal consequences for those seeking to offer help to confused, non-English-speaking, or disabled voters. While the authoritarian aspects of rewarding vigilante self-help by well-meaning citizens who would take law enforcement into their own hands has been broadly noted, the more troubling turn here is the targeting of vulnerable citizens who simply need help. In a sense we are witnessing two sides of the same coin: empowering and emboldening those who are certain they know what the law is, and isolating and terrifying those who are uncertain and require assistance and clarification. Texas isn’t only rewarding vigilantes; it’s threatening anyone who might get in their way.
In so doing, Texas—with an assist from the Supreme Court—is also turning fundamental notions of privacy upside down. Roe, you might recall, was rooted in the idea that a pregnant woman and her physician should have the breathing room to make fundamental life decisions outside the scrum of public and political pressure. S.B. 8 all but guarantees that every aspect of a pregnant person’s life, from last menstrual period to private consultations with counselors, is on public display. In a paradoxical way, S.B. 8 says that one is entitled to medical privacy and bodily autonomy in all matters except reproduction, and that these choices are to be aired in public and litigated by anyone and everyone. S.B. 1 similarly inserts anyone who calls himself a poll watcher into a private act of voting; it asks that voters run the gantlet of neighbors and activists, in order to be seen and heard at the ballot box.
On Jan. 6, a marauding legion of Trump supporters formed an ad hoc committee of private attorneys general and violently attempted to overturn the United States election. Rather than viewing that episode as a teachable moment about the particular dangers of empowering inchoate political rage, Republicans in Texas and elsewhere are placating that same angry beast as if that dark day was a negotiation opening. “Maybe you took it a bit too far that time, but you were basically right” is the message conveyed, in essence.
The net result of arming anti-abortion activists with the legal standing to target the most vulnerable among us may not result in actual violence, given that abortion providers in Texas promptly shut down or stopped offering services at six weeks, which was always the point of the law. But the threat underpinning the legalized self-help and vigilantism couldn’t be more clearly implied. That threat was daunting enough to end lawful abortion in Texas overnight. And it is the same threat that is now being wielded over access to the ballot box. We’re all going to vote this November and in the foreseeable Novembers that follow, but we now know that many voters will do so feeling they have targets painted on their backs, just like they’re on the backs of vulnerable women and those who offer them assistance.
Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.
Scott Pilutik practices law in New York City.
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