by Sophie Trist
In May, Texas passed a new abortion law similar to the heartbeat bills passed in other states. Though comparable laws have often been blocked by federal courts, on September 1, 2021, the Texas law went into effect when the Supreme Court refused to block it. Like the laws in Louisiana, Alabama, Georgia, Ohio, and several other states, SB8 bans abortion after six weeks of pregnancy, or when a preborn child’s heartbeat can be detected. I fully support heartbeat laws in general, as I believe unequivocally that abortion is an act of violence perpetrated against the smallest, most vulnerable of our human siblings, and heartbeat bills make great strides toward protecting many within this vulnerable group. I believe that the Supreme Court of the United States was wrong to legalize and normalize this violence in Roe v. Wade, and I hope that anti-abortion legislation eventually paves the way for a society where preborn lives are valued just as much as those already born. This Texas heartbeat bill takes several big steps in the right direction; however, it doesn’t present a truly restorative vision for a world beyond abortion.
Rather than having the state’s Attorney General and Department of Justice enforce the law, thus allowing abortion clinics and pro-choice advocates to preemptively sue, this law permits private citizens to sue anyone who helps someone obtain an illegal abortion, potentially including abortion facility workers, the pregnant person’s family and friends, the crisis counselor who recommended the facility, or even the driver who brought the patient to the clinic. Thankfully, this law understands that people are often coerced and pressured into abortion by societal factors, financial issues, and even the family and friends around them in their neighborhood, in their home, and in the workplace. Therefore, the person who obtained the abortion cannot be sued for it. However, the person bringing the lawsuit does not have to be personally connected to the woman or her preborn child in any way; it would be perfectly legal, under this new law, for a random person on Facebook to sue those who helped a pregnant stranger obtain an abortion after the six-week limit.
Texas Right to Life created a website, www.prolifewhistleblowers.com, where people can submit anonymous tips about suspected abortions. With these reports going to a private organization, this system is ripe for abuse. With citizens being offered $10,000 and attorneys’ fees if they manage to successfully prosecute an illegal abortion, opportunists could target vulnerable people under this law without concern for their wellbeing. Though stopping systems that enable abortion is a good thing, the financial incentive of $10,000 per report could result in a glut of false reporting and groundless lawsuits, potentially dragging innocent people through a traumatic legal system focused on punishment. With any citizen empowered to sue someone for aiding and abetting an illegal abortion, I worry that Texas is opening the door to a scenario reminiscent of the Salem witch trials or George Orwell’s 1984, where people become their sisters’ watchers instead of their sisters’ keepers. Not to mention that this system doesn’t truly deal with the harms that abortion causes to individuals and communities. Though a financial penalty for physicians and staff who continue performing abortions is of a more restorative nature than the harsh and often dehumanizing retributive model of incarceration, this law falls short of a holistic restorative justice system.
I don’t believe that we can create a truly pro-life, nonviolent society with intimidating surveillance and punitive measures. Pro-life feminist Frederica Matthews-Green wrote in 1991, “No one wants an abortion as she wants an ice-cream cone or a Porsche. She wants an abortion as an animal, caught in a trap, wants to gnaw off its own leg. Abortion is a tragic attempt to escape a desperate situation by an act of violence and self-loss.” Many women get abortions because they feel they have no other options and society has taught them to dehumanize preborn children. Financial difficulties and a lack of community support are often given as primary or at least substantial reasons for most abortions. Pro-life legislators need to address this; bringing an end to abortion has to also involve increasing community support for pregnant people. While the aim of the Texas law — to save preborn lives from the violence of abortion — is a noble one, the enforcement and reporting methods are likely to compound the personal and communal trauma of abortion.
Aimee Murphy of Rehumanize International and Catherine Glenn Foster of Americans United for Life have their own vision of how to handle illegal abortion in a post-Roe America. In a white paper titled “Restore the Heart: Healing the Communal Trauma of Abortion Through a Restorative Justice System,” they outline a model that puts the human dignity of both the preborn child and her mother at the center of the discourse, discarding our current retributive justice system — which favors punishment and fails to mend the rifts in communities caused by acts of aggressive violence. Under their proposed system, judicial matters relating to abortion would belong in a family court or some other space where the emphasis is on restoration, not criminality. While it is important to recognize the culpability of those who participate in abortions and the harm they cause, it is also vital to find a path forward that is redemptive and acknowledges the social complexity of abortion. In a restorative justice system, a judge acts more as a counselor than an arbiter of punishment, and the preborn victim gets a voice in the proceedings through an advocate. The pregnant person would be connected to post-abortive resources and care. They and anyone who assisted in the abortion would participate in an educational program designed to teach them about nonviolent solutions to social ills and countering dehumanization in all its forms. Through this process, the perpetrators of abortion would undergo a transformative process of acknowledging the harm done, apologizing for said harm, and being reconciled with the community through compassion and healing. Foster and Murphy write,
“In upholding the inherent moral worth of the preborn child, we must be certain not to violate the shared intrinsic dignity of those who have participated in abortions. In our current retributive model of justice we see countless examples of inhumane and dehumanizing conditions that should be considered as unacceptable outright in a pro-life culture. The difference between the current Retributive Justice system and our proposed Restorative Justice model is not one of degree of punishment, but rather… the foundational principle of human dignity at the core of Restorative Justice necessitates a whole paradigm shift away from the question of punishment, and towards the task of creating authentic, human-centered restoration.”
I am encouraged that the Supreme Court has allowed the Texas law to go into effect. It shows that the high court is finally reckoning with its disastrous decision in Roe v. Wade, which has cost over sixty million lives. But by emphasizing surveillance and punishment over restoration and healing, the Texas law is not giving pregnant people the compassionate care and community support that will make the violence of abortion unthinkable. Though I am tentatively optimistic that this law will serve as the first step toward a more pro-life future, Texas and the rest of the world still have much work to do to achieve restorative, human-centered justice systems.