The Texas abortion statute SB8 has drawn a mountain of well-deserved criticism, including on constitutional, moral, and scientific grounds. But it is wrong for another reason, as well—one that I have yet to hear enumerated. The law creates untouchables, outsiders whom others feel compelled to avoid. To understand how SB8 accomplishes this objective, consider the impact of the most infamous section, the one that invites literally anybody to bring a lawsuit against a person who “aids and abets” an abortion. The impact that this section is already having calls forth a scenario that one can readily understand by remembering middle school before the advent of anti-bullying initiatives.
Middle School
When I was in fifth grade, a new girl whom I will call Tina came to my school. I was, at the time, not especially “popular” (big surprise, I know), but I had a group of friends. It was clear to me when Tina arrived at school that the group would classify her as a “loser.” I knew what everybody in the class knew within minutes of Tina’s arrival: no one would want to be her friend. She had untreated acne, her greasy, curly hair was brushed out straight so that it formed a triangular cloud around her pear-shaped head, her giant eyeglasses made her pupils look like pinpoints, and she spoke so softly that it took at least three repetitions to catch the gist of what she was saying on the rare occasion on which she spoke at all. If I ran into her (the 11-year-old version) today, I would go out of my way to be friendly. The poor girl was friendless and alone, and she deserved an ally. She never did anything mean, and yet the community of my class treated her like she had nothing to offer.
I am embarrassed to admit that I did not rebel against the cruelty of my classmates, and sadly, not one of our teachers or administrators did a thing to make life easier for Tina. My mom, who was much older than the other moms, just as Tina’s mom was, invited Tina to our house and brought me over to Tina’s house as well. I enjoyed playing with Tina in these settings. She was an intelligent and creative girl. So I knew that Tina was not really a “loser” (whatever that meant anyway), but it did not change how I acted around her at school. I did not speak to her, and I became visibly irritated if she spoke to me. It is the latter dynamic that I think is worth highlighting for its relevance to SB8.
Some of the children in my class probably believed that Tina was not worth getting to know because of her looks or her voice or her lack of confidence. But many more of us understood that her immediately evident status at the lowest rung of the social ladder could contaminate others in the class. Like a contagious disease, her stigma could spread to one of us. It was this concern that led me to avoid her when we were at school, despite the fact that I enjoyed her company when she and I spent time at each other’s houses. Sometimes I would swear I could feel Tina approaching me at school, and I made a point of walking away. And I was not the only one who did this, although I am sure it felt especially awful when I did because she thought of me as her friend. At some point, I asked my mom to stop arranging for me and Tina to get together, so the cognitive dissonance pushed me in exactly the wrong direction. Years later, I found Tina through the internet and begged her forgiveness for the way I treated her. She was gracious, as always, and said we were children and there was nothing to forgive.
SB8 and Tina
The Texas law that is both unconstitutional and profoundly despicable, recreates the sort of dysfunctional community that existed in my fifth-grade class. Tina, of course, stands in for the woman who wants an abortion. And the contagion in question is not COVID (for Texas lawmakers seem oblivious to that contagion) but proximity to the woman who wants an abortion. Recall that the law gives any Tom, Dick, or Harry the right to sue people who offer help or support to a woman planning to terminate her pregnancy in violation of the (blatantly unconstitutional) SB8. That threat—whether or not anyone ultimately carries it out—is the threat of contagion. The woman seeking an abortion bears the stigma, and everyone around who might have offered assistance must now steer clear of her to avoid catching the virus and becoming a defendant, much as I and Tina’s other classmates avoided Tina so we would not suffer the social demotion that we anticipated would come of any association with her. Stigma has an in terrorem effect on the surrounding community.
I heard one reporter on NPR say that she had called an Uber and then a Lyft car to take her to an abortion clinic in Texas (as a kind of experiment), and both cars canceled the rides after she had reserved them. The statute specifies that offering financial reimbursement (as an insurer might do) or financial help with paying for the abortion would subject the helper to liability under the law. Although I would very much like to help support women in Texas seeking an abortion—and though I know SB8 is unconstitutional—the statute is nonetheless having an in terrorem effect on me. Note how people who do not actually oppose abortion are suddenly guarding themselves from association with women who wish to terminate their pregnancies. As in my situation with Tina, the people who are staying away from the stigmatized individual are mostly scared of what could happen if other people observed the association between them and the stigmatized. That is the power of a stigma: even people like me who enjoyed Tina’s company and who want to support a woman seeking an abortion are afraid of the penalties that the group will visit upon us for daring to reach out and offer friendship to the friendless.
Social Animals
Humans are social animals that require connection with others to thrive and even to survive. Animals, including humans, have always had outcasts, once in the form of disabled children left to die on the side of a mountain. As time has passed and we have attempted to better ourselves, we have moved to stop the kinds of bullying in which the human animals (and perhaps some other animals too) commonly engage, including racism, misogyny, homophobia, and the other ways of shutting out those who are different from most of the group. In SB8, the Texas legislature has taken a giant step backward, a step towards exclusion and stigmatization through the threat of a lawsuit, leaving the woman seeking an abortion alone and unable to find someone to drive her to the clinic, to sit with her while she waits, to give her money if she cannot afford the procedure, and to stand by her. Texas, in energizing stigma, is not alone. The Supreme Court, just last term, held that the Free Exercise Clause of the First Amendment protects the right of social service agencies that screen potential foster parents to refuse to evaluate same-sex couples. The Court has thus invoked the Constitution to protect discrimination in public functions. That too is a step backward, toward a world that Socrates’s interlocutor in Plato’s Republic, Thrasymachus, thought was just: a world in which the strongest win (“justice is to the advantage of the stronger”). The strongest win when they scare everyone else into persecuting or shunning the weakest, whether it is in a middle-school classroom or the state of Texas.
