*A number of cited hyperlinks reference only women when discussing abortion and reproductive rights. The author and UM ACLU acknowledge and respect that not every person restrained by reproductive regulations identifies as a woman.
At the start of this month, Texas put into effect the most stringent abortion regulations in the country. Texas’s new abortion law bans any termination procedure, other than a “medical emergency,” after six weeks. Despite long standing precedent that prevents states from criminalizing elective abortions before the end of the first trimester (end of week 12), this law went into effect at the beginning of September this year.
The constitutionality of the Texas law was challenged by the Department of Justice on September 9, 2021. The claims asserted include violations of the Supremacy Clause, the Intergovernmental Immunity Clause, and federal preemption.
To make this new law more difficult to review and challenge under federal precedent, Texas deputized its citizens to enforce the law through civil litigation opposed to criminal prosecution. Texas citizens can now sue anyone who assists any pregnant person in getting an abortion, even a hired driver to a clinic, with the potential to recover $10,000 from each person found liable for “aiding and abetting” an abortion. These private citizens do not need to demonstrate a personal connection to the suit. This extra step of civilian deputization will follow a long history of abuse directed towards Black, Indigenous, and People of Color (BIPOC) communities.
White vigilantism is, and always has been, a part of this country’s culture. Slave patrols, the predecessor to our modern police system, became active in the early 1700s. These civilian-led patrols worked relentlessly to keep Black people subdued through abject terror in an effort to prevent revolts by enslaved persons. Slave patrols were not labeled as official law enforcement but were a government sponsored force paid to frequent areas that threatened revolution. Members of slave patrols were not bound by typical regulations on privacy rights. They were authorized to forcefully enter the homes of anyone they suspected of harboring enslaved persons. Though slave patrols technically ended with the conclusion of the Civil War, more aptly they were simply renamed. Slave patrols are still seen in action today every time a white person takes it upon themselves to forcibly regulate a member of BIPOC communities. This can be as simple as calling the police on a racist hunch, an action well-known to result in harm to BIPOC persons, to even more extreme examples of armed self-imposed “justice.”
The Black Lives Matter protests, in response to the brutal treatment of BIPOC, particularly Black, persons by police, saw not only a harsh reaction from official law enforcement but additional attacks from self-proclaimed militia groups acting as civilian vigilantes. Though last summer these groups were featured more prominently in the media, this extreme action does not arise only from the last couple years. Since the 1980s, groups of civilians, largely made up of white persons, have taken it upon themselves to monitor the U.S. and Mexico border and forcibly prevent people from entering the United States.
Reminiscent of slave patrols, this type of civilian regulation is sanctioned either by victim blaming and/or direct endorsement from law enforcement. The killing of two Kenosha, Wisconsin protestors in 2020 represents one of the more egregious examples of this, where police not only encouraged the assailant to patrol the streets on the night of the incident but also donated to him afterwards.
Beyond these obvious acts of racially motivated aggression, civilian policing takes the form of excessive 911 calls to law enforcement with reports of frivolous claims against members of BIPOC communities, particularly Black men, for unsubstantiated criminal activity. These non-emergency calls are statistically more probable to harm BIPOC persons than white persons and are a direct result of the white vigilantism embedded in our culture.
Issues surrounding reproductive rights impact members of historically disenfranchised communities more acutely than white communities. Social and economic disparities, from mass-incarceration to birth parent and infant mortality rates, contribute to this unsettling reality. With the new Texas abortion ban this historic oppression will continue in tandem with the added threat of civilian deputization—a tool actively weaponized against BIPOC communities. The Texas abortion ban, and its associated sanctioned vigilantism, will have the same disproportionately negative effect civilian deputization has always had on the same communities that have always suffered from the consequences of civilian enacted “justice.”
Instead of rewarding modern versions of slave patrols, the monetary incentive to civilian deputization in Texas could fund more productive societal benefits such as food and housing security; access to medical insurance and healthcare; public education; and general financial stability for state citizens—particularly children. The policy behind this new law claims to value life, yet it was signed by the same governor who actively combats Covid-19 precautions as the pandemic rips through his state’s underage population, and it apportions government funds to active attacks on people’s livelihood. If preservation of life truly is the goal of Texas lawmakers, it cannot be achieved by civilian policing of BIPOC persons.