UPDATE (Sept. 1, 2021, 10:30 a.m. ET): This piece has been updated throughout to reflect that the Texas abortion law went into effect Wednesday.
Texas has spent years attacking access to abortion. After the state exploited the Covid-19 crisis last spring to try to close abortion clinics, it was hard to imagine it could get more extreme.
My own experience with assault makes it clear that this bill would be particularly catastrophic for survivors of sexual assault.
But a new law does just that, legislation billed as the first of its kind for the tactics it uses to prevent access to abortion. Like several other states have moved to do, Texas now outlaws all abortions once cardiac activity in the fetus can be detected. That usually occurs around six weeks — only two weeks past a missed period, and before most women even know they’re pregnant. It functions as a near total ban on abortion, making no exceptions for rape or incest. In some cases, doctors who need to resolve a patient’s miscarriage might also be prevented from doing so.
It’s the enforcement provisions that make the Texas legislation unique, however. Everywhere else, only a few public officials can prosecute this kind of law. This law goes much further by allowing any person other than a state or local official to sue an abortion provider or someone who “aids and abets” another person in obtaining an abortion, whether or not they were directly involved and whether or not they’re located in Texas.
In other words, if a Texan becomes pregnant as a result of rape and is provided information about how to obtain an abortion by a rape counselor, the rapist could sue that counselor if the survivor had what the state deems an “illegal” abortion. The rapist could also sue the doctor who provided the abortion and anyone else — like a family member — who supported them in getting the abortion.
Similarly, someone who provides funds for an abortion could be sued, even if they didn’t know that’s what the money was being used for. And since anyone who “intends to engage” in providing an outlawed abortion can also be held liable, it’s possible to imagine that the rapist or other party could sue the provider in advance of the procedure to stop it from happening, denying the victim the ability to have the abortion.
These are just a few scenarios. By allowing individual lawsuits as opposed to relying on the state to act against any abortion offenses, the measure unleashes an army of abortion opponents to sue and harass providers, counselers and activists. Now courts could be flooded with potentially frivolous and harassing lawsuits.
The law does include some language to prevent a person who commits sexual assault from suing. But the law as written could be read to require that the assailant have gone through the legal system — and only about 1 in 4 sexual assaults are even reported, with the vast majority never resulting in a conviction. Not to mention putting the burden of tossing the suit on the survivor.
When I was 19, two weeks before the start of my sophomore year of college, I was raped. It completely changed my life: I stopped being able to talk to people, couldn’t go to class, couldn’t date. It shattered my sense of trust in everyone around me and the world as a whole. If I didn’t have my mom, my sister and my best friend — who believed me from the beginning and always supported me — I couldn’t have made it through that time.
This legislation could give the power back to the rapist via state-sanctioned reproductive coercion. It could even put survivors who decide to have an abortion over the objection of their rapist or abuser in danger of further harm.
I’m in the small percentage of people who were assaulted by a stranger; the vast majority of survivors of sexual violence know their assailants. With this law, abusers could potentially isolate the survivors by suing their loved ones, counselors and caregivers. And it opens up the survivor’s support system and medical providers to harassment via constant litigation from his associates.
I’ve experienced trying to navigate a legal system that was set up for anything but my healing after my rape; in fact, it only compounded the pain. I cannot imagine inviting further trauma on those around me — of putting in harm’s way the people who got me through that impossible time had I needed an abortion. Or being forced through yet more interaction with a legal system in that vulnerable time.
And I can speak from experience that even when you do report, even when you work with law enforcement, your case could still not result in a conviction; mine didn’t even go to trial.
Rapists exert power over others and seek to control them. They deny their victims autonomy over their bodies and rob them of the ability to make their own choices. They dehumanize and punish them. And so could this legislation.
By allowing individual lawsuits as opposed to relying on the state to act against any abortion offenses, the measure unleashes an army of abortion opponents to sue and harass providers.
Let’s be clear: The Texas law not only violates the U.S. Constitution as determined by Roe v. Wade, but also changes the very nature of enforcing laws — shifting them from state officials to the mob.
Essentially, the law creates an almost unlimited potential for defendants, contradicting the Texas Constitution’s minimum requirements to bring civil legal action — i.e., to have standing — in the state. In doing so, it subverts core constitutional and democratic principles in a direct affront to our system of government.
Our elected officials should leverage their power in support of the dignity of survivors like me — not our rapists. They should be protecting our rights and securing our ability to live and thrive — not obstructing it. At the very least, they should not perpetuate the cycle of abuse.
Marina Garrett is a lifelong Texan and a sexual assault survivor of almost six years. She graduated from the University of Texas at Austin with a degree in anthropology and now works advocating for fellow survivors across the state in partnership with the ACLU of Texas.