This week, conservative Texas politicians achieved something they'd been working at for years: effectively outlawing abortion.
At the stroke of midnight on Sept. 1, a bill that prohibits abortion after the detection of what lawmakers described as a fetal "heartbeat", which often occurs as early as six weeks in pregnancy, went into effect after being passed earlier this year. Medical experts say this framing falsely portrays electrical activity in cardiac cells as evidence of viability. While the legislation doesn't penalize someone who receives an abortion, it encourages vigilanteism by awarding at least $10,000 in legal damages to any private citizen who successfully sues someone who "aids or abets" an abortion that occurs beyond the legal timeframe.
The Supreme Court, which just five years ago struck down as unconstitutional another Texas law restricting abortion, declined to block the bill from going into effect. In 2016, the Supreme Court's 5-3 decision hinged on former Justice Anthony Kennedy. Following his retirement and the appointment of three conservative judges during the Trump administration, including Justice Brett Kavanaugh, the court is now majority conservative.
Justice Sonia Sotomayor, who was appointed by President Obama, wrote in her dissent that the bill is "clearly unconstitutional."
"[A] majority of Justices have opted to bury their heads in the sand," she said.
"In effect, the Texas Legislature has deputized the State's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures."
The ban prompted outrage and calls to donate to abortion funds, which use contributions to help those seeking an abortion receive medical care. That can include paying for the cost of the procedure itself in addition to related expenses like translation services, childcare, transportation, and lodging. This support is critical for patients who live dozens or hundreds of miles from an abortion clinic. Funds may also direct donations toward public policy advocacy. There are 10 such funds in Texas, according to the National Network of Abortion Funds. An ActBlue fundraiser is splitting contributions evenly between those groups.
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Prof. Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor at University of Chicago and an abortion rights expert, said in an email to Mashable that, based on his interpretation, it remains legal to donate to an abortion fund provided that money is only used to seek care in Texas prior to the detection of cardiac activity. But given that most people don't confirm pregnancy until six weeks or later, it's unlikely that Texans will be able to receive abortion care in the state.
"[The bill] absolutely devastates people seeking abortion care as the vast majority of Texans...will have to now travel out of state," says Neesha Davé, deputy director of Lilith Fund, an abortion fund in Texas that manages a website with information about how to find abortion care.
Davé says that abortion care will be costlier than ever before as a result. During the pandemic, when Texas temporarily banned abortion as an "elective" medical procedure, one Lilith Fund client traveled as far as Seattle for an abortion. Clients often go to closer states, like New Mexico or Colorado, but it's unclear how increased out-of-state demand will impact abortion services in those areas. Davé says that since the bill went into effect, Lilith Fund has received 1,300 new donations.
The legislation also makes abortion funds a target of the so-called bounty hunters looking to receive a financial award for identifying those who defy Texas' law, Davé says.
"Even as we are all complying with Senate Bill 8 to the best of our ability, as we are taking great care to not violate the law, SB8 encourages and incentivizes anti-abortion vigilantes to sue us anyway," says Davé. "They don't have to prove that we have violated the law in order to bring claims against us, and we will have to defend ourselves."
As a consequence, donations to the Lilith Fund, as well as other abortion funds, may be used to support those legal battles.
