How Texas’ SB-8 disproportionately impacts undocumented communities

By David Menino and AC Fernández

Texas abortion law SB-8 guts people’s ability to seek abortion services and disproportionately impacts undocumented communities that are already targeted for deportation.

In short, the law allows private citizens, who may not even live in Texas, to sue anyone who performs an abortion in the state. SB-8 also allows private citizens to sue any Texan who aids or abets — or even just intends on aiding or abetting — anyone trying to access abortion services. Individuals who are sued can face a minimum of $10,000 in statutory damages.

Protestors gather outside the Texas State Capitol in opposition to SB-8 on Oct 2nd, 2021 (Courtesy of the Texas Tribune)

SB-8 follows another piece of legislation that crippled abortion services in the state. In 2013 Texas passed HB-2, which required providers at abortion clinics to have admitting privileges at a nearby hospital; it also required abortion clinics to meet the same standards as ambulatory service centers, like having hallways wide enough for gurneys. As a result, HB-2 shut down 19 of the 41 facilities providing abortion services and the number of abortion providers fell sharply. The number of women living more than 100 miles away from the nearest abortion clinic also more than tripled.

Courtesy of the Texas Policy Evaluation Project

Prior to the passage of SB-8 in Texas, undocumented immigrants seeking abortions in the state already faced additional, significant obstacles to pregnancy termination. Barred from acquiring health insurance, undocumented people seeking abortions often relied on free clinics or referrals from organizations like the Latina Institute for Reproductive Justice, which has an office in the Rio Grande Valley.

In an interview this Fall, Nancy Cardeñas Peña, the director of the LIRJ in the region, described the immigration checkpoints within Texas that make it hard for anyone seeking an abortion to travel far for a procedure — like, for example, to seek an abortion over state lines:

“In areas like the Rio Grande Valley, we only have one clinic to meet the demand of an entire region, and that’s millions of people trying to access services for this clinic. And so, we also have internal immigration checkpoints 100 miles in that prevent people who are undocumented from seeking care outside of the state of Texas, outside of even that region where they currently live. So, leaving the state for care — that’s simply not an option,” said Peña.

Under SB-8, not only can organizations like LIRJ be penalized for “aiding and abetting” Texans seeking abortion services, but also Texans making donations to organizations that provide abortion resources may be interpreted as taking part in the “aiding and abetting” process as well.

Undocumented women seeking abortion services in Texas now have two targets on them: one for being undocumented, and another for seeking help to exercise their right to choose. According to a recent analysis by the Guttmacher Institute, driving to the nearest abortion clinic out of state (assuming they successfully avoid internal immigration checkpoints) could be up to 247 miles away now that SB-8 has effectively shut down abortion services in Texas. Undocumented women seeking abortion now face increased burden in having to accrue the financial resources needed for transportation, food, and lodging that come with such a trip.

The militarization of these checkpoints within state lines serves as an intimidation tactic that undocumented Texans are forced to live in fear of every day; now, after the passage of SB-8, any person suspected to have sought an abortion after 6 weeks is subject to civil prosecution. The combination of being undocumented, uninsured, and living in Texas while seeking an abortion essentially relegates pregnant people in Texas to live in a pre-Roe v. Wade era, with no legal choice but to carry a pregnancy to term.

Of course, banning abortions does not prevent them from occurring; rather, it almost ensures that maternal mortality rates will spike as a result of botched or so-called “back alley” abortions. For example, after Romania banned abortions in the 1960’s, maternal mortality rates associated with botched abortions sky rocketed. Immediately following the legalization of abortions in 1989, these fatalities dropped from over 140 per 100,000 yearly deaths to approximately 30 per 100,000.

Bensen, Andersen & Samandari (2011)

By depriving undocumented pregnant Texans from accessing abortions, it is not unfathomable that these botched abortion trends will be repeated, and that those too intimidated by immigration checkpoints or too poor to travel outside of Texas will be left to terminate pregnancies through unsafe means.

SB-8 therefore only succeeds in endangering the lives of Texans seeking to terminate unwanted pregnancies by forcing them to do so without help or medical guidance. This reality is especially true for undocumented Texans, who bear the burden of health disparities in the state, and are most cut off from resources that could ensure a safe abortion.

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David Menino and AC Fernández are both second-year medical students at the UC Berkeley — UCSF Joint Medical program.

Quetzales de Salud seeks to connect undocumented immigrants to healthcare.