As anyone knows who follows the status of women’s reproductive rights in the U.S., access to safe, legal abortion is becoming more and more difficult. Onerous laws are increasingly widespread, especially in Republican-dominated states. The worst of them is the recently passed Texas SB-8, which prohibits all abortion after fetal heartbeat can be detected (approximately six weeks gestation)—a time at which most women are not even aware that they are pregnant. Moreover, SB-8 deputizes private citizens to sue not only anyone who performs an abortion, but also anyone who “aids and abets” the procedure, be they clinic staff, counselors, nonprofit employees who arrange financing, even Uber drivers taking women to appointments. The law has been described as a “bounty hunter system.” Plaintiffs, who do not have to show any connection to the abortion recipient nor do they even have to live in Texas, are awarded $10,000 plus legal fees if they win their case; successful defendants get nothing.
Health rights activists fear that the Supreme Court, whose three Trump appointees are extremely reactionary, will overturn the landmark 1973 Roe v. Wade decision affirming women’s constitutional right to abortion. In response to appeals to block the Texas law pending judicial review, the Supreme Court ruled 5-to-4 to let the law go into effect. The dissenting justices included the normally quite conservative Chief Justice John Roberts, who called SB-8 “not only unusual, but unprecedented,” and said that the law should have been blocked while appeals were underway. Justice Sonia Sotomayor labeled SB-8 “a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights.” Justice Elena Kagan called her five colleagues’ refusal to block the Texas law “unreasoned, inconsistent and impossible to defend.”
On September 9 Attorney General Merrick Garland announced that the U.S. Department of Justice was filing a challenge to SB-8, which he called “clearly unconstitutional” in part because it allows individuals to infringe upon the constitutional rights of others. Meanwhile, however, abortion services in Texas are in complete disarray. Dr. Bhavik Kumar (a Planned Parenthood physician who is one of the plaintiffs in a lawsuit against SB-8) has had to turn away numerous panicked women whose pregnancies are past the SB-8 cut-off, and he worries that they will have to resort to unsafe means to end their pregnancies. Dr. Kumar stresses that it’s plain to all who know anything about women’s reproductive decision making that “banning abortion does not change the need for abortion.” The women Dr. Kumar’s clinic usually helps will have to go elsewhere.
A Great Step Forward in Mexico
Ironically, for many Texas women, the closest accessible, safe, and reasonable abortion possibility might be across the border in Mexico. At the same time that five U.S. Supreme Court justices are callously displaying their disregard for the safety and constitutional rights of women, on September 7 the Mexican Supreme Court, in a unanimous decision, ruled that making abortion a crime is against the constitution. Mexican Chief Justice Arturo Zaldivar noted that the decision “is a watershed in the history of the rights of all women, especially the most vulnerable.” The decision opens the way for challenges to the laws in most Mexican states that criminalize abortion, and also allows activists to petition for the release of women jailed for the procedure. Mexican feminist organizations are hopeful that the twenty-eight states that ban abortion under most circumstances will soon be compelled to join Oaxaca, Hidalgo, Veracruz and Mexico City in allowing first trimester abortion. Mexico will become the fifth Latin American country (joining Argentina, Cuba, Guyana and Uruguay) to decriminalize the procedure.
Some feminists are fully aware that the unanimous decision of Mexico’s Supreme Court stands in stark contrast to what Justice Sotomayor called the “stunning” irresponsibility of her Supreme Court colleagues in the U.S. Paula Avila-Guillen, executive director of the Women’s Equality Center, said that the Mexican decision is a bright spot in the fight to protect women’s reproductive rights worldwide. Avila-Guillen saw reason for optimism in Latin America “even as we see the U.S. Supreme Court and Texas walk women back into darkness.” She also pointed out that the Mexican court’s decision specifically struck down the state of Coahuila’s anti-abortion law. Coahuila borders Texas, so it could very well be that Texas women will be among those to benefit from Mexico’s ruling favoring women’s reproductive rights. Avila-Guillen mused: “Could the safest way for Texan women to have access to a safe, legal abortion soon be to make their way to Mexico?”
(Sources consulted include pieces in The New York Times, Axios, CNN and NPR.)