Given the makeup of the far-right Supreme Court, it has for some years been clear that Roe v. Wade would fall. Following Friday’s 6-3 decision to destroy all constitutional abortion rights, 22 states will enact their readied trigger laws for total or near-total abortion bans, with more expected to follow. Fascistic anti-abortionists have won in the courts, but they are already making clear that a victory in law is nothing to them if the laws are not brutally enforced to forge a Christian-nationalist nation through and through.
With the end of Roe achieved, the fascist right is setting its sights on shutting down and criminalizing all crucial sites of abortion solidarity and assistance that reproductive rights networks are fighting to build.
To get a sense of their expansive, draconian agenda, we need only look at the model legislation drafted by the National Right to Life Coalition — the sort of laws that Republicans in state houses will be no doubt swiftly proposing.
“Traditionally, abortion laws relied on criminal enforcement to make pro-life laws effective,” the powerful anti-abortion organization wrote. “However, current realities require a much more robust enforcement regime than reliance on criminal penalties.”
That is, for these groups, criminalization of abortion providers is not fascistic enough.
For these groups, criminalization of abortion providers is not fascistic enough.
The model legislation would seek to use Racketeer Influenced and Corrupt Organizations — or RICO — laws against anyone with any involvement in someone accessing an abortion. People could come under criminal suspicion for offering telehealth appointments; mailing or transporting abortion pills across state lines; potentially giving advice online about how to self-administer an abortion; or even “hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion.” All these activities would fall under “aiding and abetting.”
Drawing attention to the model law on Twitter, historian Thomas Lecaque noted, “IT DOESN’T STOP THERE THIS IS A BLUEPRINT FOR A CHRISTIAN NATIONALIST SURVEILLANCE STATE.”
The model legislation also makes clear that the route to enforcement should be vigilantism, following the lead of Texas’s vile Senate Bill 8. The law permits anyone to file a civil suit against any person who could be deemed to “abet” an abortion — potentially including an Uber driver who takes someone to an abortion appointment, or a therapist or pastor who has counseled a person on ending a pregnancy. The plaintiff need have no personal connection to the abortion seeker or fetus at all. The Texas law incentivizes anti-abortion crusaders to act as bounty hunters, promising $10,000 to those who bring successful suits against abortions performed in violation of the law.
We can expect a spate of such laws to pass in red states, and without Roe on the books, they can no longer be challenged on constitutional lines. The enemies of abortion access, in other words, won’t be letting up anytime soon — and reproductive rights will continue to be stripped from more and more people.
The Texas law was not built on a new concept. White supremacist, patriarchal rule in this country has always relied on the coalition of government forces, official police, and state-endorsed vigilantism.
There are many examples. The Jim Crow South, for instance, depended on the threat of lynching and mob violence to enforce white rule. From the fabled Texas Rangers to Klansmen to today’s right-wing militia groups armed with assault weapons, vigilantes have worked in tandem with immigration enforcement agents to hunt down and round up immigrants trying to cross the border. Before Kyle Rittenhouse shot dead two anti-racist protesters, he was thanked by police for his heavily armed presence in Kenosha, Wisconsin. Federal agents were advised by the Department of Homeland Security to publicly support the right-wing teen and claim that he “took his rifle to the scene of the rioting to help defend small business owners.”
As with the intersecting enforcement of racial hierarchy, we are seeing the shoring up of patriarchal power through a most American vigilantism, both outside of and inscribed into law.
We can be certain, too, that anti-abortionists will not wait to see whether all aspects of their bans and criminalization plans stand up in federal court before enacting them. The right makes laws realities through violence, and violent realities through law.
The right makes laws realities through violence, and violent realities through law.
S.B. 8 went into law while Roe was still on the books, despite being in clear violation of its now-dead protections. And a 26-year-old woman was arrested in Texas on murder charges in connection to a “self-induced abortion.” The charges were dropped, since no such murder statute currently exists in the state, but the incident highlighted the ways in which zealous law enforcement already polices and criminalizes abortion. This will only get worse, and poor women of color will suffer the most under the right’s forced-birth regime.
This is not to say that bold legislative efforts in abortion-protective states cannot work in effective opposition to block some of these Christo-fascist fantasies. The end of Roe, as a forthcoming and crucial paper in the Columbia Law Review notes, brings about an entirely new battleground of interstate juridical conflict. States that support access rights will move to pass laws that protect abortion providers who treat out-of-state patients, while anti-abortion states will seek to pass laws to prosecute out-of-state providers.
Legislators in Connecticut, for example, recently passed a bill designed to protect abortion providers who assist patients seeking refuge from abortion-ban states. Those of us in other blue states must push our legislators to do the same. The far right’s plans to criminalize interstate travel and online abortion solidarity must be forced to contend with robust protections for those activities where such protections can be made into law.
As is all too clear, however, when it comes to Congress and the federal government — and most any case that reaches the Supreme Court — the fascists have the upper hand against feckless Democrats. The ever-steeper uphill battle for universal abortion access will thus rely on the wisdom, experience, and cunning of those who have already been fighting on the front lines for reproductive justice, in the legal gray areas, in the streets and by the side of anyone seeking to end an unwanted pregnancy, in the collective struggle for lives worth living.