Clay, Not Stone
By: Rick Taylor
Tags: US Politics, Abortion, Texas Abortion Law

Clay, Not Stone

We have this idea that the law is inherent and immutable. It exists to protect us, to create order in what would otherwise be a chaotic, brutal world. But like every other aspect of society, the law is merely an invention, something we created along the way to make things run as we believed they should. As with any other invention, the law can be tinkered with, abused, or just outright ignored as needed.

The Texas abortion law is one of a few recent examples of this practice. Under the law, all abortions are banned - including pregnancies that result from incest and rape - after six weeks. If any woman gets an abortion after that time, the law allows any U.S. citizen to sue not only the woman but the doctor who performed the abortion, anyone who gave her money to pay for it, anyone who gave her a ride, along with anyone else who could conceivably said to have "aided and abetted" in acquiring the abortion. Should the plaintiffs win their civil suit, the law requires judges to impose at least a $10,000 fine on the defendants, payable to the plaintiffs.

There are a litany of problems with this law. For one, abortion is a federally guaranteed constitutional right, up until the point of fetal viability. Banning abortions at 6 weeks on its own makes the Texas law inherently unconstitutional but, like I said, there are other problems, too. The whole point of the bounty system is for Texas to try to avoid an official state punishment against women who seek or get abortions. Its supposed to be an end run around the law, basically the official version of "You can't blame me for the things I let other people do."

Obviously, I don't have the legal background to say definitively whether or not Texas declaring open season on women and their support networks while awarding bounties to pro-lifer vigilantes amounts to those vigilantes qualifying as state actors but, still. It's an incredibly obvious question to bring up, one which I expect will be argued at length as the challenges to the law make their way to the Supreme Court.

The other, other problem the Texas law has is that it makes an absolute mockery of standing. In the legal world, standing is basically the concept that if you have suffered a specific harm, you have the right to sue to repair that harm in court. Larger point being, standing isn't exactly something you can just grant to people willy-nilly, there still has to be some form of active harm done to people bringing the lawsuit, especially when it comes to civil actions.

Part of why I think the bounty system won't survive contact (at least at first) with the court system is that there is no compelling argument in favor of it that doesn't involve the pursuit of state interests. What specific harm, for example, does anyone in Dallas suffer if a woman in El Paso gets an abortion? What possible injury could they cite as reason for the lawsuit? The state can claim this harm because it represents the whole of the community, so it can take action to protect what it sees as public interest. Except, Roe v. Wade and Planned Parenthood v. Casey have slammed this door closed. These cases established and defined abortion as a constitutional right under the 14th amendment which limited the options states could use to directly crackdown on abortion. Even with a Supreme Court willing to indulge Texas' nonsense (we'll deal with this in a minute) required Texas had to invent this bounty scheme in the first place. But, like I said, standing isn't something you can conjure out of thin air, some part of it has to be conferred in order for it to work.

Push against this feature of the law even just a little and it quickly falls apart. There is no basis for any random citizen to sue another for pursuing medical treatment they don't like. The only possible justification I can think of is that these suits are in the public interest but, again, private individuals don't have this because they cannot prove they've suffered a distinct or palpable injury which is a constitutional requirement for any lawsuit to work. These vigilante cases only legal authority then would have to come from the fact that these private individuals are acting as proxies for the state which, brings us right back to constitutional hard stop set up by Roe and Casey.

Whether any of this matters is an open question. With a 6-3 majority, the conservative wing can lose Roberts but still sit comfortably with a 5-4 ruling in favor of Texas. I've made a big deal about how flagrantly unconstitutional the Texas law is but, if the Supreme Court wants to, it can change the definition of "unconstitutional" whenever they want. Move to limit corporate spending in elections? Well, by our own doctrines, corporations are people, money is speech, therefore, campaign finance restrictions are unconstitutional. It's incredibly easy to alter the bedrock legal principles that our whole system is built on so, the next year will be somewhat nerve wracking as we wait to see whether or not women's bodily autonomy is something the Supreme Court is interested in protecting.

Because for all the muddling the pro-life movement does, abortion is a bodily autonomy issue. Yes, a fetus is involved, but that does not make it the central issue. In order for the fetus to survive, it must use the the food, blood, and oxygen among many, many other things, of its mother. Here's the important thing- nothing and no one is allowed to use your body against your will. If you are in the hospital and another patient needs a blood transfusion to live, the hospital cannot take your blood because, bodily autonomy. Even when we die, our organs cannot be harvested to save others is we did not consent to do so when we were alive. It is a irony of their position that the so called pro-lifers dream world is one where a corpse has greater dignity and sanctity than a living woman.

There are no fundamental differences between a pregnancy or the above situations. The main objections against lumping all these things together usually bring out nonsensical arguments or religious ones about how, in the case of abortion, because sex was involved, that was the woman's choice so pregnancy is just her avoiding responsibility for her decisions. Which, honestly, your religious beliefs are your own but are ultimately irrelevant. If you believe that life begins at conception, that every fetus has a soul, and that every abortion is ending all the potential of a human life, fine, I'm not saying you can't believe that. What I am saying you can't do is turn around so that everyone has to live your creed, because that isn't caring or loving.

If your goal is to make sure every baby comes into the world with a family who loves and care about them, banning abortion won't do that. Because instead of love, this law uses the power of the state to make every woman afraid, afraid to go to their doctor, afraid to ask for help, afraid to do anything other than keep her head down and just try to figure it out however she can. This law is designed to cut pregnant women off from any and all decisions other than having their child and, much more insidious than that, place any one who helps them do anything else in legal peril. What love is to be found in fear, desperation, and isolation?

This is why so much work is done by pro-life groups to make the whole abortion argument about the life of the fetus. Yes, it does function to muddle the discussion as a whole and wastes an inordinate amount of time not only trying to refute subjective moral and religious questions but also trying to move the argument to the actual issues abortion deals with. All that said, the rhetoric is primarily for their own internal consumption so they feel galvanized to pursue the goal. It also serves as a soothing mental balm as the contradictions of your stated goals about the sanctity of life being achieved by the reality of grinding an entire segment of the population under heel. Something has to square that circle, so in comes the pursuit of life itself above all else to trump the concerns of robbing women of their independence and dignity.

Another interesting aspect to notice here is that while Texas is flagrantly breaking the law, any prospective punishment is largely theoretical at this point. Which, again, shows that the law is largely a social construction that is unevenly applied. If you has an individual did something that so blatantly violated the constitutional rights, you'd be screwed. But a state does it? Not only do they get away with it, they get the chance to rewrite things so their illegality becomes the law itself.

One of the most common flexes of supposed first world countries like the United States is that we are a nation of laws. The idea is that we have risen above the barbarity of simply ruling by force of violence. that we have evolved into a system based on reasoned laws, applied equitably and dispassionately with only the occasional lapse brought about by individual bad actors. Except, laws are

tools. We wield them as we will to make the world a better place or to wrap people in chains. We use the law to put distance between us and the consequences of what we want. If something terrible is legal or the law does evil work we throw our hands up, say "what are you gonna do, it's the law," and move on.

But the law, and its consequences, are only what we want them to be. It's never been anything more or anything less.