More and more, it seems, we must look to Texas for the worst that government has to offer.
Texas is where Republicans get to be all that they can be. A place where there’s no right they can’t take away, no policy they can’t make crueler, no institution they can’t demolish and remake for the benefit of white Christian men, and the servitude of everyone else.
But it’s on the abortion issue that Texas truly overachieves. Yes, Wyoming legislators can ban abortion pills. Yes, South Carolina legislators can propose the death penalty for both the woman and her doctor. But it’s to Texas we turn for real leadership in the subjugation of women.
In Texas, anti-abortion legislation is old news. The laws are in place, and now it’s time to implement them. We’re just starting to see what Texas judges, prosecutors, and police have in mind — what they’re prepared to do to force women to either give birth or die trying.
As expected, most of the action is in civil cases, at least for now, and it’s getting lively. Three separate lawsuits have grabbed the national spotlight, each unsettling in its own way.
First, we have the assault on the Federal Drug Administration, by means of an action being brought before a Trump-appointed federal judge who is reliably pro-death. The suit seeks to force the FDA to withdraw its twenty-year approval of mifepristone — one of the two pills that go into a medication abortion — for no medical reason whatsoever.
Never mind that mifepristone has other life-saving uses. Never mind that this would remove it from the market, even in states where abortion is legal. Never mind the absurdity of judges deciding medical issues they know nothing about. Never mind that down this path lies the further “de-approval” of birth control pills, AIDS treatments, and transgender therapies, not to mention the endorsement of things like ivermectin, hydroxychloroquine, maybe even Lysol.
Let’s stipulate that the politicization of the FDA is not a good thing. The legal arguments being made are transparently dishonest, claiming that mifepristone is untested and dangerous, which is outrageously false.
But in Texas you can go judge-shopping, and the plaintiffs got just the judge they were shopping for. I won’t get into the case itself (you can here), except to say that it makes no sense from either a legal or a medical perspective. The only thing it has going for it is a medieval judge who will almost certainly make a medieval ruling.
The second notable case was just filed in a Texas court. Marcus Silva, a Texas male, is suing his ex-wife — and, significantly, the two friends who helped her end her pregnancy — for the wrongful death of “their” fetus.
The story is sordid. As The Times’ Michelle Goldberg wrote last week, the woman (unnamed for obvious reasons) found out she was pregnant shortly after she’d filed for divorce. She knew Silva would “try to use the pregnancy to make her stay with him.” She turned to friends, who helped her find abortion pills, and who gave her a safe place to undergo the procedure.
Now, Silva is suing each of them for a million dollars apiece. His lawyer is Jonathan F. Mitchell, who is — not coincidentally — the brains behind Texas’ odious “abortion bounty” law. It should be mentioned that “wrongful death” is a novel and disturbing claim, seen by some legal scholars “as a bid to win judicial recognition of fetal personhood in Texas law.” In other words, this a test case.
But whether the lawsuit is successful or not is almost beside the point. What matters, Goldberg says, is its effect on Texas women who hear about it:
They’re just going to see the news that the women accused of helping Silva’s ex-wife were publicly humiliated and put in grave financial jeopardy, and they’re going to think twice about confiding in their friends about an unwanted pregnancy.
She might have added that they’ll also think twice before helping a friend obtain an abortion.
The third case is a “fighting back” story (here) about the atrocious reality these laws have already created. It vividly spotlights the “catastrophic harms” that are now being inflicted on women who have no medical choice but to abort their pregnancies.
Five women are suing the State of Texas. All were happy to be pregnant. All were looking forward to bearing a child. All were facing life-threatening complications with their pregnancies. All were bearing fetuses that had no chance of survival.
And all were denied treatment they desperately needed. They had to sneak out of state, at great expense and even greater risk to their health:
One plaintiff, Amanda Zurawski, was told she was not yet sick enough to receive an abortion, then twice became septic, and was left with so much scar tissue that one of her fallopian tubes is permanently closed.
The most chilling word in that sentence is “yet.”
Before the Dobbs decision, their doctors could have dealt with these medical problems in a straightforward and safe manner. But now, Texas doctors are paralyzed by legal uncertainty. They’re being forced into hard choices about how and where they practice their profession:
Texas, like most states with bans, allows exceptions when a physician determines there is risk of “substantial” harm to a pregnant woman. Yet the potential for prison sentences of up to 99 years, $100,000 fines and the loss of medical licenses has scared doctors into not providing abortions even in cases where the law would seem to allow them.
But this litigation is less about its outcome and more about the buzz it generates. These women are the victims of medical atrocities, and you can’t hear their stories without reacting viscerally. The more we hear of them, the more the pressures — both legal and electoral — will start to build on both sides.
It’s clear that Texas, already on the cutting edge of cruelty, is just getting started. And it’s equally clear that Texas is a model for other red states.
So for women who need an abortion in those states, the choices will soon be down to three — go out-of-state, go underground, or go through with the pregnancy.
The end result will be too many women dead, too many families broken, and too many children born with their futures already in doubt.
In Texas, that seems to be the point.