The criminalisation of bodily integrity under Texas abortion laws
The Texas Heartbeat Act leaves women and pregnant people with no safe option if they do not wish to carry their pregnancy to term.
What are the abortion laws in Texas?
Texas now has the most restrictive abortion laws in the US. The Texas Heartbeat Act, which was passed in September last year, prohibits the termination of a pregnancy after a foetal heartbeat has been detected. However, according to the American College of Obstetricians and Gynaecologists, it is misleading to refer to what is detected as a “heartbeat” - at this stage, it is “a portion of the foetal tissue” that will eventually develop into the heart.
This can happen from as early as six weeks’ gestation, at which point many people do not even realise they are pregnant.
To put this into perspective, six weeks’ gestation marks just two weeks after a missed period, which would not be out of the ordinary for anyone with longer menstrual cycles or irregular periods. People that continue to bleed during pregnancy, and those who experience mild or no symptoms, are also very unlikely to know that they are pregnant at such an early stage.
Under the Texas Heartbeat Act, also known as Senate Bill 8 (SB 8), abortion providers or anyone who abets a termination of someone else’s pregnancy can be sued by private citizens. This can even include a taxi driver that takes a pregnant person to an abortion clinic. The person filing the lawsuit does not even have to be a Texan citizen or know of the person they are suing, and will receive at least $10,000 if the case is won.
Although this does not apply to the pregnant person undergoing the procedure, that is, it is not actually criminal offence to be an abortion patient, abortion clinics in Texas will just refuse to terminate a pregnancy after a heartbeat is detected. There are no exceptions for cases of rape or incest.
The law supposedly authorises abortions if a medical emergency occurs. However, it has been reported that a woman with an ectopic pregnancy in South Texas was denied an abortion by her doctor, who told her that they could not go ahead with the procedure in line with SB 8. The patient was made to drive for over 12 hours to a clinic in New Mexico, where she finally received an abortion.
Another law in Texas has banned the prescription and mail delivery of abortion-inducing medications after week seven of pregnancy.
Lizelle Herrera’s case
Last week, a 26 year old women was arrested and charged with murder in Texas after carrying out a self-induced abortion. Herrera remained in jail for three days, but it was unclear under which law she was charged.
The new legislation states that private citizens are empowered to sue anyone who aids or performs an abortion, however, according to Stephen Vladeck from the University of Texas law, homicide “doesn’t apply to the murder of an unborn child if the conduct charged is ‘conduct committed by the mother of the unborn child.’”
Legal professionals and abortion rights campaigners have argued that Ms Herrera’s arrest was wrongful, as no law in Texas licences the prosecution of pregnant people who have terminated their own pregnancy. The prosecuting attorney, Gocha Allen Ramirez, concluded that “based on Texas law and the facts presented, it is not a criminal matter”, and has since dismissed the indictment against Ms Herrera.
Justice was brought to Ms Herrera courtesy of the collaborative efforts of organisations South Texans for Reproductive Justice, The Latina Institute TX, Frontera Fund, and ACLU Texas, who demanded that charges be dropped.
In a tweet, South Texans for Reproductive Justice called the outcome “a bittersweet victory.”
The activist group added: “It should not have taken national attention for these charges to be dismissed. Lizelle was indicted on January 7. It should not have taken until April 9 for her to be released. Pregnant people deserve a full range of care in all communities.”
The dangers of criminalising abortion
Since the law took effect, abortion clinics in Texas have seen a huge reduction in the number of patients coming in, as most women and pregnant people looking to undergo the procedure are no longer eligible.
As a result, many people have sought abortions in other states such as Oklahoma, Kansas, New Mexico, and Illinois. In Oklahoma, a small neighbouring state of Texas, clinics do not have the capacity to cope with the influx of Texan patients. The four Oklahoma clinics have been forced to cut back on other services, extend their hours, and employ more doctors just to accommodate the additional 600 patients every month. However, lengthy waiting lists have caused patients to go through the procedure when they are much further along in their pregnancies. And a lot of pregnant people are still being turned away, putting more pressure on clinics in other nearby regions.
Last Tuesday, Oklahoma approved a bill that will make performing or attempting to perform an abortion a felony. When implemented this summer, abortion providers could receive a $100,000 fine and face 10 years imprisonment. Again, this will have a cumulative effect on clinics in other states; doctors and clinician workers are to be squeezed even further as they do their utmost to face the impossible task of providing care to patients from their own state, and those from Texas and Oklahoma. Waiting times will inevitably become longer and longer, which will lead to an uptake in people being forced to carry their unwanted pregnancy to term.
On the new Oklahoma legislation, the interim president and CEO of Planned Parenthood Great Plains, Emily Wales said: “Oklahoma is going from a state where we’ve been a haven for refugees who’ve needed support to a state that has chosen to make refugees of its own citizens.”
But we also must acknowledge that fleeing to other states for an abortion is not a viable option for a lot of people. Those who are unable to secure childcare, take the time off work, or do not have the financial means to travel, are compelled to go through with their unwanted pregnancy or resort to a self-induced abortion. The latter is highly dangerous, but when people are so desperate not to carry their pregnancy to term, inflicting this kind of harm on their bodies seems like the only choice when there are no safe options available.
Being denied an abortion and going through with an unwanted pregnancy is likely to endanger a person’s physical and psychological well-being, as well as exacerbate financial hardship. An influential longitudinal study conducted from 2007 to 2012, known as the Turnaway Study, explored the long-term consequences that receiving or being denied abortions had on women. All 1,132 pregnant women had actively sought abortions, but some were not eligible for the procedure and had to carry their unwanted pregnancy to term.
It was found that, in the short term, the women that were denied abortions were likely to experience anxiety and self-esteem problems. During pregnancy, they were more likely to suffer from acute health complications such as eclampsia, and in the years after pregnancy they were more likely to experience chronic pain and gestational hypertension. This group of women would often stay tied to their violent partners if they were in an abusive relationship at the time of their pregnancy. In terms of socioeconomic outcomes, being denied an abortion would often result in a four-fold increase in the likelihood of living below the Federal Poverty Level.
Overall, being denied an abortion was likely to have long-lasting implications not only for the mother, but for her existing children and the child born out of the unwanted pregnancy.
95% of the women who received their abortions did not regret their decision down the line - in fact, “relief was the most commonly felt emotion”. The same women also described their relationships with their partners as “very good”; previous victims of domestic abuse were more likely to cut ties with their abusive partners because they had no reason to remain in contact.
It is incomprehensible that anyone should be allowed to take away pregnant people’s reproductive decision-making rights. But it is all the more insulting that restrictive legislation on abortion is often influenced by cisgender male policy makers, who will never have to experience pregnancy or labour.
Bodily autonomy should be a basic human right - no birthing person should ever be made to feel like a criminal for choosing what to do with their own body. Campaign and fundraising groups such as South Texans for Reproductive Justice, If When How, Frontera Fund, and Centre for Reproductive Rights are doing important work to push for the right to bodily integrity and access to safe abortions for everyone. If you consider abortions to be healthcare, and reproductive rights to be fundamental human rights, please donate to or support these organisations in whatever way you can.
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