A month after signing SB8, the most draconian anti-reproductive-rights law in the country, Texas Governor Greg Abbott approved a bill that—while misidentifying its tenets and never citing it by name—effectively banned the teaching of what Republicans have misconstrued as “critical race theory.”
Ironically, CRT offers just the right framework through which to identify the white supremacist politicking and codified misogynoir embedded in Texas’ newest, cruelest attack on women’s constitutional reproductive justice rights. The law’s ban on abortions performed after six weeks will be most devastating for Black women, who already face a nexus of socioeconomic issues that make abortions at once a critical, and an often inaccessible, resource.
But by offering a minimum $10,000 reward to private citizens who pursue and win lawsuits against “any person” accused of having “aided or abetted” in an abortion—a linguistic net cast wide enough to ensnare clinicians, the patient’s Uber driver, and anyone who helped pay for the procedure’s costs—Texas lawmakers have formally invited people to self-deputize and surveil and criminalize the most vulnerable.
Which is what white people already do to Black folks. And with this new law providing justification, those racist attacks will only get worse.
The often-cited precedent for this kind of legalized, racialized bounty-hunting can be found in America’s Fugitive Slave Acts, and its predecessor colonial statutes, which empowered every white person, under the flimsiest of pretexts, to detain any Black person they accused of escaping enslavement, with the promise of handsome bounties as reward. Those laws were stripped from the books in 1864, but one could be forgiven for being unaware of their erasure, considering the legacy of white self-deputization and vigilantism that persists to this day.
Modern technology has allowed a fraction of demonstrable incidents to be documented, primarily via cellphone video. In recent years, viral footage has shown everyday white citizens policing Black folks for simply existing in spaces both public and private—verbally accosting, attacking, or calling cops on Black folks simply awaiting friends at Starbucks, departing their Airbnb rental, or delivering UPS packages while clearly clad in a UPS uniform. These examples show how white people continue to wield authoritative whiteness as a badge and a weapon, seemingly to remind Black folks and reassure themselves that they still can.
“We’ve seen white women deputize themselves to report little Black girls with lemonade stands, Black children delivering newspapers, Black children selling candy bars. So we know that there is already a social and cultural lean-in to the policing and surveillance of Black people, and a sense of legitimacy that some white people feel in tracking Black people,” says Michele Goodwin, a University of California at Irvine School of Law Chancellor’s Professor and director of the Center for Biotechnology and Global Health Policy. “There’s historical precedent, when Black people were enslaved and both state and federal laws were enacted that deputized white citizens to go after them for financial rewards. But we also see what that is like today in myriad ways.”
When white people people declare themselves proxies for the state, the state often co-signs that position by treating their reports as unassailable and authoritative while unleashing the full power of the state against Black folks targeted by those white vigilantes. Tamir Rice, a 12-year-old Black boy, was fatally shot on sight by police reacting to a caller’s tip; local law enforcement and a district attorney tried to dismiss the murder of Ahmaud Arbery based on the words of his white vigilante killers. The actual guilt or innocence of Black folks is far too often regarded as irrelevant in the face of everyday white citizens’ accusations.
Consider that a 2017 National Registry of Exoneration study found that “innocent black people are about seven times more likely to be convicted of murder than innocent white people,” and that “black people who are convicted of murder are about 50 percent more likely to be innocent than non-black people convicted of murder.” Black people are already over-policed, over-arrested, overcharged and over-sentenced; Black women, more specifically, are often falsely viewed as irresponsible and untrustworthy. Studies from as recently as 2017 and 2018 show Black women are “perceived more negatively on items related to historically rooted societal stereotypes about sexual activity, sexual risk, motherhood status, and socioeconomic status” than white women, and that “Black women are both objectified and dehumanized to a greater extent than White women.”
As Johns Hopkins professor Leah Wright Rigueur has written, there is a persistent “American mythology surrounding the so-called menace of the pathological Black matriarch of the 1960s, the treacherous welfare queen of the 1970s, and the drug-addled crack mother (and her babies) of the 1980s,” stereotypes that are used to justify the way that Black women’s “private lives are consistently subjected to public surveillance, scrutiny, and judgment, as if to suggest that these women cannot be trusted to be responsible for themselves.” When Black women do give birth, they are more likely to be screened for drugs, often without their consent or knowledge, despite being less likely to test positive than white women; more likely to be reported to Child Protective Services than white mothers; and have a greater chance of having their children removed from their custody.
Like the Fugitive Slave Law before it, the Texas anti-abortion law is sure to result in a disproportionate number of accusations against Black folks, particularly Black women. The law only thickens the atmosphere of fear amongst a population already fearful of what is too often an oppositional and punitive state.
“Under Fugitive Slave Laws, an individual could bring any random Black person before a magistrate and claim they had a fugitive escapee, but Black people were given no opportunity to speak up and defend themselves,” says Goodwin. “Oftentimes, bounty hunters made mistakes. The historical record shows there were many Black people who had never been enslaved who suddenly became enslaved because of this. And it created a chilling effect, so that in places like Pennsylvania, Philadelphia and Boston, there were postings telling Black people to look over their shoulders because bounty hunters that were in town or were coming to town. That precedent matters here.”
Goodwin continued, “In the instances where the Fugitive Slave Law was challenged, the laws were always upheld by the Supreme Court. This is basically what the Supreme Court has done [now], which is to say, look the other way when Texas enacts a law that provides for the surveillance, the hunting, the tracking down of people who would seek to use their civil liberties and civil rights.”
Abortion providers in Texas have already reported that in the days before SB8 became law, anti-reproductive activists from groups like Texas Right to Life began increasing their presence at clinics, intimidating incoming patients and stepping up surveillance. One Planned Parenthood provider described “people sitting in our parking lots taking down license plate numbers, and taking pictures,” another recounted how anti-choice protesters attempted to interrupt service provisions by repeatedly calling cops and the fire department, despite the fact that no laws were being broken. Where have we seen that before?
These groups will step up their actions now that the government has green-lit their vigilantism, and Black women are likely to be their primary targets.
“Much of the mainstream media has failed to take into account how violent the anti-abortion movement is and has been. Just a few years ago, there was a mass shooting in at a Colorado Planned Parenthood by a person who was a member of an anti-abortion organization. This is a movement that has acknowledged being involved in the bombing of nearly 60 abortion clinics since 1977. Those are the kinds of statistics that you'd hear about in Ireland, where there is fighting between various groups, or Afghanistan. People would say, "Oh, we must bring democracy there! We must help those women!" Goodwin told me.
“But that doesn't even account for the daily organized violence this country has just taken as normal now when these individuals who are part of these movements appear outside of abortion clinics and harass and stop the people who go in. It is these people who've now been given a law to take it further, and that should concern us all.”
Black women are disproportionately victimized by sexual violence and abuse. In a country with one of the highest maternal mortality rates among rich countries, in which Black women are three times more likely to die during or after childbirth than white women, Texas is a leader in postpartum deaths, which means outcomes for Black Texas women are particularly dire. A study from the University of Colorado Boulder found a nationwide abortion ban “would lead to a 21 percent increase in the number of pregnancy-related deaths overall and a 33 percent increase among Black women.”
Those problems are compounded by issues related to poverty and discrimination, all of which contribute to the reasons that Black women have higher rates of abortion. For years, Black Texas women have pushed for the state to address the maternal death rates of Black mothers — a Texas state committee found 90 percent of those deaths, which were largely attributable to medical racism, were preventable — but legislators have instead chosen to create anti-abortion bills that further imperil Black women’s lives and all-around health and wellness.
And as Goodwin points out, the Texas law opens the door for a flood of similar bills across the country, particularly in southern states, where the majority of Black Americans live. SCOTUS is set to hear a case for a 15-week abortion ban from Mississippi, the Blackest state in the country, this fall. That means Black women beyond the borders of Texas face yet more barriers to abortion.
“The people in the United States who are most likely to die by carrying pregnancies to term are Black women. We will see how that continues under this current regime, because in the state of Texas, they've not enacted any kind of legislation that makes life better for Black women,” Goodwin told me. “There's been no legislation targeting wage equity. There's been no legislation that has targeted free childcare, no Medicaid expansion.
“All of those things are part of the death sentence that now targets Black women. Every time that a state enacts a Draconian anti-abortion piece of legislation given all of the other facts we know that's surround it, it's a death sentence for so many women, especially Black women.”
