In just two months, Texas lawmakers have put challenges to landmark civil rights protections that threaten to upend the groundwork hard-won by generations of activists. The first is an upsetting rebuke to the 1973 Supreme Court ruling Roe v. Wade: Texas Senate Bill 8, which bans abortion after six weeks of pregnancy and deputizes individuals to bring civil suits against anyone who helps a patient obtain an abortion after that period of time.
The latest challenge is a letter written by Texas state Rep. James White to Attorney General Ken Paxton, which seeks to clarify whether individuals are legally required to abide by another SCOTUS ruling, Obergefell v. Hodges, which legalized marriage for same-sex couples.
“The State of Texas has not amended or repealed its marriage laws in response to Obergefell v. Hodges,” White wrote to Paxton. “And the Supreme Court has no power to amend formally or revoke a state statute or constitutional provision—even after opining that the state law violates the Supreme Court’s interpretation of the Constitution.”
Beyond these seemingly discrete confrontations of SCOTUS rulings is a deeper connection, experts say, between the ways that anti-abortion attacks are linked to other attacks on civil rights and legal efforts to achieve a more racially just society.
“They’re definitely related,” said Aziza Ahmed, professor of law at the University of California, Irvine (UCI) School of Law. “There’s a lot of factors that contribute to this moment that we’re in, in which conservatives are basically trying to undo all these rights that marginalized people have, that women have, [and] that trans people have.”
Undercutting basic rights only recently extended to marginalized people is made possible by a conservative Supreme Court with the end goal of appeasing a specific demographic group, Ahmed explained.
“Now, of course, which individuals are a very important piece of this, because in every one of those scenarios, some individuals are empowered, while others are disempowered,” Ahmed said. “So in the abortion context, it’s these bounty hunters that are empowered, while the abortion providers and the [patients] are disempowered.”
If changes to the law in order to limit self-determination of some in favor of a power grab for others is made functionally possible by the high court, it’s made ideologically possible by the legal foundation of the country, Ahmed said. According to Ahmed, the conservative Republican Party in Texas is communicating to its constituents, who are largely white, that their right to personal freedoms, i.e. power, is worth the expense of another person’s agency.
“The whole foundation of our country is this,” Ahmed said. “We celebrated freedom and liberty at the very foundation of this country while we enslaved people; this paradox has always existed. Being able to mobilize the language of freedom and liberty and choice while marginalizing the needs of other people to benefit those who are in power is sort of a systematic feature of American democracy.”
Ahmed points to the Fugitive Slave Act of 1850 as the origin point or inspiration for the kinds of laws like Texas’ SB 8. The 19th century federal law allowed any private citizen to hunt enslaved and formerly enslaved Black people who had attempted to escape to their freedom. The law, as explained in an interview with Slate by fellow UCI professor Michelle Goodwin, who’s written extensively on the subject, “provided for citizen participation in the preservation of American slavery.” White bounty hunters even earned a profit for every enslaved Black person they stalked and captured.
But the methods of punishment for exercising bodily autonomy aren’t the only thing these laws have in common. Historically, legislators and legal vigilantes have learned from successes of anti-Black and segregationist legal strategies of the 20th century that relied on claims about individual freedoms and state’s rights to enact racist legislation.
For instance, until 1923, the Texas Democratic Party legally mandated that only white people could cast ballots in primary elections. Texas allowed political parties to establish their own rules, even if those rules contained racist statues. The Supreme Court found that the rule was unconstitutional. So-called “white primaries” no longer exist, but other forms of voter control and fearmongering do.
Starting just after the Reconstruction period ended in the late 1870s, white people attacked Black voters at the polls with legal impunity. In southern states, white “poll watchers” attempted to intimidate Black voters from casting their ballots by burning down and destroying Black businesses and homes and killing Black people. Methods of securing “election integrity” by way of poll watching and voter challenging continue to today. Often, racist justifications about skin color or documentation status are used to deny someone the right to vote.
At the root of the legislation that seeks to allow for disparate access to public utilities and legal rights are the very tenets of racism, homophobia, transphobia, and misogyny that built unequal systems to begin with. The way forward, Ahmed said, is similar to the work that set the foundation for civil rights wins.
“It’s really going to take a lot of grassroots activism and momentum to change all this. The fixes aren’t going to come from the courts alone or from the legislature, especially not the Supreme Court today.”