Texas Abortion Ban: The State-Sanctioned Killing of Poor Black and Brown Pregnant People
Charlene Echeverria Burciaga
Loyola University Chicago School of Law, JD 2023
Texas Senate Bill 8 (“SB 8”), also known as “The Texas Heartbeat Act,” went into effect on September 1, 2021, banning abortions after six weeks of pregnancy or after the fetus’s heartbeat has been detected. Additionally, it awards any civilian who successfully reports someone for aiding, abetting, or performing an abortion after the six-week mark with $10,000. The United States Supreme Court, as Justice Sotomayor described, “buried their heads in the sand” and decided not to comment on the abortion ban’s constitutionality under the guise of a technicality. Historically, abortion bans have been death penalties to many people seeking abortions and contribute up to thirteen percent of pregnancy-related deaths. Abortion bans do not reduce the number of abortions, but rather reduce the number of safe abortions while increasing avoidable deaths. Abortion bans work as a form of dangerous regulatory mechanisms that function as the state-sanctioned killing of poor people who are often Black, Brown, and indigenous who cannot travel outside the state to receive care.
Implications of this ban on pregnant people who are Black, Brown, and Indigenous
The Texas abortion ban prohibits abortion care once there is cardiac activity; however, with the advancements in technology, fetal cardiac activity can be detected as soon as five to six weeks gestation before the development of the heart. According to the Texas Policy Evaluation Project, in 2018, only sixteen percent out of 600 people seeking an abortion were less than six weeks pregnant. Therefore the majority of pregnant people in Texas are now prohibited from obtaining abortion care. Historically, previous abortion bans seem to have substantially affected the number of abortions provided to Black and Brown people, a talking point for many pro-life activists. However, the decrease in abortions by Black and Brown people only relates to the number of abortions provided in that state. This does not account for the likelihood that people are still seeking abortions in other states or by dangerous means. Ultimately, the removal of accessible abortions is disadvantaging people of color who are poor.
In Texas, 18.6 percent of Black people live in poverty, 18.7 percent of Latinxs live in poverty, 15.1 percent of Native Americans live in poverty, and only 8.0 percent of whites live in poverty. The high poverty rates in Black and Brown communities make abortion inaccessible even without the new ban because there is no federal requirement for insurance to cover abortions, and the Hyde Amendment bans the use of federal funds for abortions under the Medicaid Program. The Texas Ban further punishes poor Black and Brown pregnant people because it makes abortion accessible to only those who can afford an abortion and travel outside the state to get one. According to the Guttmacher Institute, the average distance of an abortion clinic will increase to as much as 240 miles. Pregnant poor people often do not have the means to take off work, travel for several days, secure housing in another state, and secure child care for any children they might have to leave behind on top of the cost of an abortion. Traveling for an abortion becomes an even more significant obstacle to the many undocumented women who cannot leave border cities due to federal immigration checkpoints or the Black people having to travel through historically racist towns. People with disabilities face even more obstacles. Many neighboring states also have hostile abortion policies such as state-directed counseling designed to discourage patients, up to a two day wait period before receiving an abortion, and restricting abortions to less than twenty weeks postfertilization. Since SB 8 came into effect, abortion-friendly states such as New Mexico have seen a surge in patients who are now on waitlists many weeks out, lowering the probability of having an abortion that falls within the set “legal” window.
The implication of this ban on abortion providers and facilitators
SB 8 is not only one of the most strict bans ever put in place, but it allows and encourages private civilians to report anyone who is facilitating or providing abortion services. The ban goes as far as rewarding anyone who successfully reports another for intending to aid and abet with $10,000. Civilian reporting further complicates people’s ability to seek abortions because even if they can find a way to receive a safe abortion with the help of organizations or transportation, those helping might be too afraid to help. SB 8 discourages people from driving, paying, or helping abortion seekers, forcing pregnant people to seek abortion in obscure and often dangerous ways. The duplicitous regulation targets abortion seekers, by only regulating the actions of abortion providers.
Despite this, companies such as Lyft and Uber have promised to cover the costs of drivers sued under SB 8. In a statement by Lyft CEO Logan Green, they hope this will dissuade drivers from canceling rides for people going to abortion clinics from the fear of being sued. Community organizations such as RAICES also vowed to disobey the abortion ban and provide financial support to immigrants seeking abortions. The website “GoDaddy” took down the tip line website set up by Texas Right to Life after numerous fake tips were submitted. Several celebrities and even President Joe Biden called the abortion ban “un-American” and have condemned the US Supreme Court for refusing to strike down the ban. The obstetrician and gynecological community and reproductive justice activists have expressed their concern with the ban and have promised to continue pushing back.
The Texas Senate Bill 8 and any subsequent abortion ban around the country will further disadvantage poor Black and Brown people and put them in a position where their only option is seeking a dangerous abortion. Abortion bans only stop safe abortions, complying to such regulation will perpetuate poverty, violently strips people of bodily autonomy, and lead to the unwarranted deaths of so many people.