Opinion: Texas Abortion Ban Is an Attack on Free Speech

Texas Senate Bill 8 – also known as the "heartbeat bill" – went into effect on September 1. The legislation has dominated news cycles nationwide as the most extreme abortion ban in the country. As of now, abortions past the sixth week of pregnancy are not allowed in Texas, with no exceptions granted for rape or incest. The extremity of this abortion vacuum is already apparent, with Texans fleeing to Oklahoma, New Mexico, and other surrounding states in pursuit of necessary care. While SB 8 has severe consequences for bodily autonomy of pregnant people, the policy also quietly – and ominously – restricts the free speech rights of all Texans.

Every two years when the Texas legislative session rolls around, Texans can count on one thing to always be true: Republican legislators are bound to champion an inventive strategy that further curtails the state's already minimal abortion rights. Creatively, this legislation enables individuals to take civil action against those involved in the procurement process for an abortion beyond six weeks. The terms of the bill are vague, but this could include providing transportation, funding, or even information. The scope of the law is purposefully left very wide, as any individual, regardless of whether or not they know the patient or even live in our state, will have the legal ability to pursue a suit for at least $10,000. This runs against the norm for launching a civil suit, as individuals typically must suffer legal damages or injury themselves.

SB 8 restricts the right of an individual to use their voice to help another person obtain an abortion. Free speech is foundational for our democracy. Fifty-nine percent of Americans believe that people should have the right to freely express their opinions, even unpopular or controversial thoughts, in public. The 2020 Texas Republican platform agrees with this assertion, going so far as to declare that all opinions must have the right to be heard without fear of censorship or reprisal. The Texas government has forcibly asserted itself into the modern free speech debate by generating anxiety and fear to stifle voices of those within the abortion rights movement. Leading Texas Republicans Gov. Greg Abbott and U.S. Sen. Ted Cruz have made their opinions crystal clear on the importance of protected free speech. SB 8 sidelines this constitutional right as the legislature's chosen cost to essentially eliminate abortion.

The Supreme Court has allowed SB 8 to be effective for around two months now in Texas. Abortion rights organizations challenged the law, prompting the court to make a decision on whether their case could move forward. On December 10, the court held that the case challenging the legislation can proceed. However, this ruling was far from a victory for abortion rights advocates. Rather, the court effectively created a loophole for nullifying constitutional rights, allowing Texas state lawmakers to successfully evade judicial review with their use of private lawsuits. With no stay granted, the abortion ban is still the active law in the state. This technique of skirting judicial review has already had a ripple effect, with California Gov. Gavin Newsom citing the court's decision as his inspiration for new legislation targeting gun rights.

You don't have to be one of the thousands of people who proudly donned a pink beanie and marched to the U.S. Capitol building to recognize that this legislation is wrong. Conservatives have wildly overstepped, disrespecting the free speech rights they claim to value. With the future of reproductive rights in the country hanging in the balance, pregnant Texans deserve much more than falling victim to legalized alt-right vigilante fantasies. They deserve their liberty, the bedrock of the Lone Star State.

Rachel Osterloh is a master’s in public affairs student at the LBJ School at the University of Texas at Austin.

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