On September 1, Texas’s S.B. 8 – which the Texas state legislature passed and the governor signed – went into effect, banning abortions after six weeks of pregnancy. That’s a moment before many women are even aware they are pregnant.
It’s not the same as other abortion bans, and the key difference could put LGBTQ rights in jeopardy as well.
The law stands in direct violation of the U.S. Supreme Court’s landmark 1973 ruling Roe v. Wade which protects a woman’s right to choose, but found a novel way to circumvent that precedent.
Instead of making the government the enforcer as most laws do, S.B. 8 empowers private citizens – not only residents of Texas but potentially anyone anywhere in the country – to sue women who seek an abortion in Texas, along with anybody who assists them, like driving them to a reproductive health clinic or paying for the procedure.
This led to the Supreme Court’s conservative justices refusing to enforce Roe and stopping S.B. 8 from going into effect. They said that the enforcement mechanism – vigilantism – creates real legal questions, so S.B. 8 will have to go into effect while those questions get worked out.
The Texas law is being challenged in courts by the Biden Justice Department, so there is a chance that it will be overturned in the future.
But the law is a dangerous threat not solely for its impact on women’s reproductive rights but also for other groups, including the LGBTQ community. The same “private citizen vigilante” loophole logic that was used for S.B. 8 could be used in other contexts and it inevitably will be.
Imagine this scenario: a conservative state like Alabama passes a law that hands the role of performing marriages and issuing licenses to private companies and citizens instead of government officials. By taking the job out of government’s hands it could make it hard if not impossible for courts, including the Supreme Court, to hold those individuals accountable under the precedent established in Obergefell v. Hodges, the 2015 ruling which made marriage equality legal nationwide. If a private citizen denied a gay couple a marriage license, it might be much more difficult for a court to force them to do so versus a county clerk.
Would that logic stand up in a court of law? Who knows, perhaps not.
But these types of Republican-driven laws that seek to take power and authority out of the hands of government and put it in the hands of private individuals will lead to less accountability and take us towards a Randian free-for-all that could mean rights being taken away from women, gays, African-Americans, immigrants, and other historically oppressed minorities.
That’s why we in the LGBTQ community have to do everything we can to oppose this law and make sure that others like it aren’t passed in state legislatures around the country. The role of protecting peoples’ rights should be in the hands of the government, not in control of people who may decide based on their personal beliefs to deprive others of their legally protected autonomy.
This battle is key to the future of our country.