Norma and Jane: Jekyll-Hyde complexity in the new Texas Abortion Law

A master stroke of evil genius, the new law in Texas does not prosecute women seeking abortion after six weeks. What it does is encourage ordinary citizens to sue agencies participating in performing abortions.

Op Ed By Shivaji Sengupta

The Strange Case of Dr. Jekyll and Mr. Hyde was a novel written by Robert Louis Stevenson. In it the two – Jekyll and Hyde — were the same person, good by day, but a complete, consummate evil by night. They even looked totally different.

The new Texas abortion law, which went into effect last Wednesday, in many ways reflects the contradiction in the American character regarding abortion. The law restricts abortion beyond the sixth week, thus rendering the Federal Law known as Roe versus Wade useless in the state. That law gives women up to six months to have an abortion.

From six months to six weeks when, apparently, many women do not even realize they are pregnant! Apparently too, a fetus’ heart supposedly starts to beat from six weeks, although this biological fact has been challenged by medical people who support the woman’s right to have abortions. The Texan law does not make exceptions for incest or rape. You’ve made your bed, it tells women, and now sleep on it!

The law is a master stroke of evil genius. True, the law in Texas does not prosecute women seeking abortion after six weeks. What it does is encourage ordinary citizens like you and me to sue agencies participating in performing abortions on the said women, either by performing it, or even by aiding and abetting it, like driving the woman to have abortions, or providing counseling. With successful conviction, the plaintiff would receive $10,000 from the State. Before this law went into effect, the state used to sue, thereby directly denying a woman of one of her fundamental rights to its body and its privacy, something that the federal law, known as Roe vs Wade enacted in 1973, explicitly forbids.

Yet law makers in the Texas assembly are hiding their evil mask to look sweetly innocent, turning up their hands, and say, “We haven’t obstructed women from having abortions! We are only encouraging citizens from protecting babies in their mothers’ wombs, babies whose hearts have begun to beat. We are only giving those who are against abortion to do something to reduce and stop the killing of babies with heartbeats. Is that so wrong?”

The Texas law, however, still breaks Roe. The federal law is based on the 14th Amendment which forbids people from encroaching upon his or her right to personal privacy regarding lifestyle and anything else that is personal. It says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…without due process.” The encouragement to sue abortion performers, with the promise of rewarding the plaintiffs (suer) monetarily will certainly prevent abortion clinics from performing abortions on women more than six weeks pregnant. This encouragement and monetary promise is tantamount to abridging the privilege women have received through Roe v Wade.

Not surprisingly, those who challenged this law appealed to the Supreme Court to declare the law unconstitutional. In a 5-4 decision the Court decided to leave the Texas law in place since it is being litigated in the lower courts. This means that Texas can go ahead and enforce this law, something they have already started, at least until judgment in the courts are given.

Many other states with Republican governments are actively thinking of going the Texas way. Already Montana and New Hampshire have made abortion laws more restrictive. More will certainly follow.

Those of us Indian Americans who live in New York have enjoyed progressive and humane abortion laws since before the Second World War. The law here has become more and more progressive until 1973. Since then it is virtually the same as Roe v Wade. India, too, has one of the most progressive abortion laws in the world. As Chitra Subramaniam writes, “In late January 2020, the Union Cabinet amended the 1971 Medical Termination of Pregnancy (MTP) Act allowing women to seek abortions as part of the reproductive rights and gender justice.” The 1971 Act allowed only married women this privilege. The 2020 amendment allows all women the right. As such, we living in New York may not be able to fully appreciate the history of abortion laws in the United States. Unlike here in New York, it is not at all a foregone conclusion in the rest of the country that most Americans support abortion. While a majority are in favor of leaving Roe v Wade as it is, only 25% say that abortion should be legal regardless of circumstances, and 13% say abortion should be made illegal, period. Our President, for example, says he is personally against abortion, but has always supported the woman’s right to choose.

Why this ambivalence?

We might speculate on this question by reviewing briefly how Roe vs Wade became a law. Some people may not know that “Jane Roe” is an anonymous name given to one Norma McCorvey who in the 1960s tried and failed to get an abortion in Texas when on her third pregnancy. Her previous two babies were given up for abortion, the first one forcibly. Her case was taken up by two young women lawyers, Sarah Weddington and Linda Coffee, who sued the government of Texas for breaching Ms. McCorvey’s rights to privacy. The State Attorney General was Wade. Ms. McCorvey’s name was anonymized so that the case could appeal to all women instead of only to Norma who, according to a recent book on her, was complicatedly ambivalent about abortion itself. Indeed, several years after the successful passage of Roe versus Wade as a federal law, Norma McCorvey turned anti-abortionist, having embraced Roman Catholicism. Weddington and Coffee themselves staunchly pro-choice, never quite trusted Norma McCorvey’s commitment to abortion. The latter was giddy, dizzy, forever changing her mind, and worse, an opportunist.

Joshua Prager, the author of The Family Roe: An American Story (2021) writes: …if you want an honest glimpse into the American soul,…into the ways in which people can be and believe contradictory things (think Trump!), into the inner and outer lives of women squelched and tossed by reproductive tyranny..”

Then you may begin to understand why the soul of America turns from Jekyll to Hyde and back again when the subject is abortion.

It tells you that good and bad are the same faces of an opposite.

Image courtesy of (Photo courtesy CNN)

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