Texas Senate Bill 8, which bans abortion after fetal cardiac activity is detected in the gestational sac, is a terrible reproductive health policy and is fundamentally an unjust law. Even more troubling, this bill mocks gender equality and reproductive rights.
SB8 prohibits a pregnant person from terminating an unwanted pregnancy before most pregnancies are detected — around six weeks of pregnancy, disregards the constitutional right to abortion during the first stage of pregnancy and empowers private citizens to police a pregnant person.
While the method of enforcing abortion bans in SB8 is certainly novel and unprecedented, its aim and focus are not. SB8 is the latest policy in a long line of misogynistic reproductive policies that specifically target women. Throughout U.S. history, reproductive justice — the right to maintain personal bodily autonomy, have children, not have children, and parent children in safe and sustainable communities — has been an aspiration rather than a reality for most women.
Elected officials have created policies aimed at determining who is fit to have children and who is not, and countless court justices have provided cover for these ill-conceived policies. Racial, gender and economic oppression shaped local, state and national reproductive policies that permit legal surveillance of pregnant people and encourage members of their community to police them through social control.
Meanwhile, meaningful policies addressing other extremely important aspects of reproductive health are nowhere to be found. Compared to other high-income countries, the United States performs abysmally.
The United States is the only country that does not provide paid parental leave. It also has the fewest number of midwives and obstetrician-gynecologists per capita, as well as one of the highest racialized maternal and infant mortality rates.
Further, Indigenous and Black women are dying at two to three times the rate of white, Asian/Pacific Islander and Latina women. The infant mortality rates are equally grim; Black mothers experience the highest infant mortality rate, more than two times the rate experienced by white mothers.
Even though quality reproductive health care remains elusive for millions of women, reproductive policies continue to narrowly focus on eliminating access to safe, legal abortion care.
In the past decade, state legislatures have passed hundreds of policies restricting access to abortion, such as waiting periods, bans on telemedicine, informed consent procedures, and excessive regulation of abortion clinics. Most of these policies are based on misinformation and problematic assumptions that promote two false narratives: terminating an unwanted pregnancy will lead to adverse, long-term psychological and physical health problems, and abortion providers are unethical and pose a threat to women.
Across these policies, women are constructed as an unknowledgeable group incapable of making healthcare decisions without intervention from the state. SB8 is the latest piece of this policy genealogy.
At different times in U.S. history, women, predominantly of color, have been forced to become pregnant, forced to give birth, stripped of their opportunity to become pregnant through forced sterilization, and denied the right to parent their children. All of this by decree of law.
In Colonial America, pregnant, unmarried women were punished with public lashings and fines. Other women escaped punishment by entering a speedily arranged marriage to the father of the child.
Women who were enslaved did not have any of these options; every aspect of their procreation was regulated and dictated by the laws of slavery and executed by individual slaveowners. Poor women, women of color, and women who had sex outside of marriage were subjected to sterilization against their will or incarcerated for their alleged transgressions.
The passage of SB8, and the Supreme Court’s decision to let it stand, is a stark reminder that the struggle for reproductive justice and gender equality is never done.
“The Court’s order is stunning,” Justice Sonya Sotomayor wrote in her dissenting opinion. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Yet, despite the state’s continued interference, historically women have resisted oppressive reproductive policies and struggled to control their own bodies at significant risk to themselves.
Pregnant people have terminated unwanted pregnancies regardless of its legality or safety because forcing people to have unwanted children is inhumane. Women have also found ways to become pregnant and parent their children because preventing people from having wanted children is also inhumane.
SB8 is the latest iteration of this tired history. It is designed to erode gender equality by limiting pregnant people’s autonomy, agency, and ability to determine the trajectory of their own lives. And perversely, SB8 enlists and provides monetary incentives that encourage the public to enforce it. At its core, SB8 is inequitable, sexist, divisive, and unjust.
Alesha Doan, Ph.D., is a Professor at the University of Kansas in the School of Public Affairs & Administration and Department of Women, Gender & Sexuality Studies.