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Texas’s Abortion Bans and Voter Suppression Laws Let Citizens Do ‘Dirty Work’ of Opposing Constitution

S.B. 1 and S.B. 8 are linked not only in their tactics but also in a larger anti-democratic power play.

View the entire Abortion Rights Are Essential to Democracy series

Since the Jim Crow era, states have flouted the Consti­tu­tion by enlist­ing private citizens and organ­iz­a­tions to do the “dirty work” of enfor­cing laws that viol­ate funda­mental rights. Texas has been a notable offender. In 1927, for example, when no longer permit­ted to exclude Black Amer­ic­ans from primar­ies, it enacted a law deleg­at­ing the power to estab­lish qual­i­fic­a­tions for elect­oral parti­cip­a­tion to polit­ical parties; in Fort Bend County, polit­ical organ­iz­a­tions were permit­ted to run private, pre-primary elec­tions to cut Black voters out of the candid­ate selec­tion process. The Supreme Court determ­ined that these systems were uncon­sti­tu­tional more than 50 years ago. 

Texas lawmakers have resur­rec­ted this tactic once again—not only in the context of voting rights, but they’ve expan­ded it to shut down abor­tion access, too. Texas’s S.B. 8, the state’s near-total abor­tion ban, went into effect on the same day that S.B. 1, an omni­bus voter suppres­sion pack­age, was passed by both cham­bers of the state legis­lature. The paral­lels between these laws extend well beyond their synchron­ized timelines. Each law hands over an aspect of what would tradi­tion­ally be the state’s enforce­ment power to civil­ians, creat­ing and empower­ing a type of citizen vigil­ante. S.B. 8 does this by creat­ing a bounty system in which “any person, other than an officer or employee of a state or local govern­mental entity in this state” may be awar­ded at minimum $10,000 for success­fully suing an abor­tion provider or anyone who “aids and abets” someone getting an abor­tion after six weeks of preg­nancy. 

S.B. 1, mean­while, expands the author­ity of partisan poll watch­ers by giving them “free move­ment,” while also impos­ing crim­inal penal­ties on elec­tion work­ers who try to regu­late poll watcher conduct. For example, even if an elec­tion worker receives several complaints that a watcher is harass­ing and intim­id­at­ing voters, S.B. 1 prohib­its removal of the watcher from the polling place unless the worker witnesses a viol­a­tion of elec­tion law or the watcher has breached the state’s penal code. In combin­a­tion, these provi­sions limit poll work­ers’ abil­ity to ensure peace­ful elec­tions and open the door to wide­spread harass­ment and intim­id­a­tion of voters and poll work­ers alike.

The two laws further share the common­al­ity of penal­iz­ing the provi­sion of assist­ance to those exer­cising a consti­tu­tional right. By allow­ing private citizens to sue anyone they suspect of provid­ing or help­ing a person access abor­tion care, S.B. 8 creates liab­il­ity for abor­tion providers and myriad others, whether that be neigh­bors, family, ride­share drivers or members of the clergy. And S.B. 1 makes it more diffi­cult for voter­s—espe­cially those who have limited English profi­ciency, disab­il­it­ies, or less formal educa­tion—to receive assist­ance. In fact, the law makes accept­ing compens­a­tion for assist­ing voters a jail­able felony.

Another simil­ar­ity between the laws is the purpose­ful impos­i­tion of restric­tions that make exer­cising the right in ques­tion more time-consum­ing and incon­veni­ent, and there­fore more expens­ive and out of reach. S.B. 8 has pushed the major­ity of people seek­ing an abor­tion to find care outside of Texas, adding long distance travel to the list of direct costs, as well as a cascade of collat­eral costs like lost wages, time away from work, and child­care—all expenses that are felt most acutely by low-income and Black and brown Amer­ic­ans. Simil­arly, S.B. 1’s ban on 24-hour early voting and drive-thru voting prohib­its some of the most access­ible options for low-wage work­ers and others who have limited flex­ib­il­ity. 

Increas­ing logist­ical burdens to decrease access is in both the anti-abor­tion and the voter suppres­sion play­books. Mandat­ory wait­ing peri­ods, phys­i­cian admit­ting priv­ileges and hospital prox­im­ity require­ments func­tion simil­arly in the repro­duct­ive care context as do voter ID laws, polling place consol­id­a­tions and limit­a­tions on vote by mail in the elec­tion context. By chip­ping away at ease of access through seem­ingly small, incre­mental policies, lawmakers in states like Texas have effect­ively strat­i­fied all people along the lines of wealth, race and power by their abil­ity to exer­cise funda­mental rights. 

S.B. 1 and S.B. 8 are linked not only in their tactics but also in a larger anti-demo­cratic power play. Both laws aim to under­mine basic rights and privat­ize certain enforce­ment powers in an attempt to entrench conser­vat­ive polit­ical ideo­logy in the public sphere. The result is not “liberty” or “small govern­ment”: It is the delib­er­ate outsourcing of the state’s power in order to disen­fran­chise and margin­al­ize. 

At a time when the most found­a­tional of Amer­ican rights are under attack, Texas’s new laws may only be the tip of the iceberg.