Updated: September 8, 2021 7:36:50 am
The Texas abortion law, which the US Supreme Court recently refused to block, has created quite a furore, both due to the restrictive nature of the legislation and the court’s decision to let it pass.
The law has attracted criticism on many fronts — it bans termination of pregnancy after six weeks, a time limit when many women don’t even know they are pregnant; makes no exception for pregnancy caused due to rape or incest; and while it says abortions are banned once the foetus’s heartbeat can be detected, the cardiac activity detected on ultrasound by the sixth week is not a true heartbeat.
But apart from questions of endangering women’s health and autonomy, the law raises another concern – that of giving rise to vigilante scrutiny over medical procedures.
These fears have been expressed by no less than US President Joe Biden, who last week called the law “un-American” and said it encourages “a sort of vigilante system”.
The Texas Medical Association, in a strong statement criticising the law, has said, “SB 8 [Senate Bill 8] allows for a bounty that encourages practically any citizen to file a cause of action against physicians, other health care professionals, and anyone who ‘aids or abets,’ based on a suspicion. If permitted to proceed, this law will be precedent-setting and could normalise vigilante interference in the patient-physician relationship in other complex, controversial medical or ethical situations.”
Why the fears
The 1973 Roe vs Wade verdict of the US Supreme Court allows abortion up until about 24 weeks. Since then, many states have come up with laws to shorten this window, but they are all facing legal challenges and have not been implemented.
The Texas law does not ask state officials to enforce the abortion ban. What it does is in a way outsource the process to private individuals. According to The New York Times, “the Texas law deputises private citizens to sue anyone who performs an abortion or “aids and abets” a procedure. Plaintiffs who have no connection to the patient or the clinic may sue and recover legal fees, as well as $10,000 if they win.”
Thus, anyone can legally challenge anyone who has performed or helped in the performing of an abortion – the doctor who carried out the procedure, the taxi driver who ferried the woman to the clinic, a family member or friend or organisation who helped pay for the abortion.
The $10,000 bounty incentivise such flagging, and, critics fear, can lead to the law becoming a tool for harassment and vigilantism, apart from a severe curtailment of individual liberty and right to privacy.
Why does the law include this provision?
Legal experts say the wording is possibly an attempt to prevent legal challenges to the law, which have blocked other such legislation from being implemented.
Laws that bar an activity are supposed to be enforced by the state. With the Roe vs Wade verdict guaranteeing the right to abortion, the government outright preventing it will attract legal hurdles. The ‘outsourcing’ to private citizens is a way to work around this.
Thus, when the matter did come up in the Supreme Court, the question before it was, as NYT put it, “not whether the law is constitutional, but whether it can be challenged in court.”
Backlash to ‘vigilantism’
Apart from the backlash against the ‘vigilante’ provisions of the Texas law, attempts are being made to protect its possible targets.
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Cab aggregators Lyft Inc and Uber Technologies have said they will pay the legal fee for drivers sued under the law.
According to Bloomberg, after a group opposing abortions, Texas Right to Life, “set up a website encouraging people to enforce the legislation by sending anonymous tips or information about alleged violations of the act”, GoDaddy Inc., a provider of web-hosting services, refused to host it, saying it violated its terms of service.
The US Justice Department has also said it will make efforts to protect both those seeking abortions and those performing the procedure.
In a statement, Attorney General Merrick Garland said the Department “will provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack.” He added that the Freedom of Access to Clinic Entrances (FACE) Act of 1994 — which bars any violence against the exercise of the right to abortion – will be used to protect those seeking abortions.
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