Much of the country was shocked Tuesday (31 August 2021) when the Supreme Court let stand pending trial a new Texas anti-abortion law. The law, referred to as SB 8, allows anyone to file suit against abortion providers and anyone helping them and obtain a bounty of $10,000 if their suit succeeds.
Organizations that support women’s reproductive rights and the Democratic Party have many options to respond to this law. This is a scary opportunity to change both the law and public opinion in our favor. To that end, I suggest the following.
Take Action
First, and immediately, Democrats in Congress should add a provision to reconciliation that taxes any benefits obtained by people who file these bounty lawsuits. That provision should tax at 100 percent any money or assets received by such individuals from any source minus any actual costs, not reimbursed by any source, as part of the income tax law.
This would mean that anyone who files such a suit and succeeds would be contributing the money to the federal Treasury. That removes any incentive for individuals or other entities to pursue these lawsuits, vitiating the Texas anti-abortion law.
Second, the Department of Justice should seek declaratory judgment that any person who pursues one of these suits is acting as an agent of the state. That means that they are subject to the same legal actions as the states themselves. In the case of Texas, this would hold all these private persons responsible just as if they were part of the Texas government.
Third, the federal government needs to radically expand its funding for research into contraceptives. The perfect contraceptive would be one a woman could use on her own and without anyone else being aware she is using it, and that had a perfect record of preventing pregnancy. we are far away from that. I’d like to see $100 billion over ten years added to the reconciliation bill to fund additional research into contraceptives.
Fourth, the federal government and others should help fund the use of existing contraceptives for women in Texas (and any other state so inclined as to follow its lead). That specifically includes LARCs and other effective contraceptives that can prevent pregnancy under a wide range of circumstances. The federal government should offer reimbursement to anyone who purchases contraceptives by adding a provision to one of the existing programs. For example, Social Security disability could be expanded to just pay for contraceptives.
Fifth, Democrats should repeal the Hyde Amendment and prevent it from ever rearing its ugly head again. They should specifically provide federal funds for abortions through all federal programs.
Sixth, in addition to the action cited above for the DoJ, it should take the following steps:
- It should join in the defense of any person charged with helping an abortion according to state law on the basis that that state law abridges a privilege or immunity of an American citizen to control their own body, a right to privacy previously upheld by the courts.
- It should file against the state itself on the basis that it is not providing protection for a civil right, contrary to the letter and intent of the Constitution, which guarantees a republican form of government to all states (Article IV, Section 4). A republican form of government must protect the rights of its citizens.
Seventh, Congress should also pass a law that revokes the bounties to be paid to people succeeding in these lawsuits. These bounties are a kind of Letter of Marque and Reprisal. Article I, Section 8, of the Constitution grants this power to Congress. We should argue that by doing so, it intends to prohibit the states from doing this. In any event, this clause specifically gives Congress the right to control letters of marque and reprisal, so Congress can revoke any such act by a legislature.
And Then
In addition, we should seek action by both the federal government and friendly states to outlaw anti-abortion groups. States such as New York and California should crack down on anti-abortion groups, taking away their right to operate as organizations in those states. They should seek to prohibit contributions to these organizations, especially by denying the right to claim tax exemptions for contributions to them. Also, states should prohibit individuals and groups from protesting abortion providers.
Friendly states could do a good deal more to remove the money behind the anti-abortion movement.
Consumers can also take a close look at where their sources are located. If you are buying from a company headquartered in Texas, maybe you should consider finding a different source of products. This is a great time to look at where the products you get are sourced and who is providing them.
And, of course, women should move out of Texas. The state isn’t safe for women. Obviously, that’s difficult for many women to do for various practical reasons. But at a minimum, if you are a person or a company thinking of moving to Texas, now is a great time to reconsider that decision. Do you really want to live in a state that hates women so much that it will put a bounty on their heads just for wanting to run their own pregnancies?
The recent SCOTUS decision shows how dangerous it is to let Republicans into our government, and how far down the road to a patriarchal dictatorship we’ve driven. That’s horrific. But it is also an opportunity to take action on reproductive rights we have not seen since the early 1970s. This is a crisis we should not waste.