What A Time To Be Alive

Enjoying post-COVID summer during the age of eroding reproductive freedom

Last night I received an email from a Pilates studio in Los Angeles in which I have not stepped foot for two years, informing me that:

The absurdity of this announcement was not lost on me in the <1 second before I sent the email to spam. It has been nearly six months since California was under a stay-at-home order - Governor Newsom lifted that order at the end of January, to my great confusion, since the Governor had described the state as experiencing “a surge on top of surge” in COVID cases only a couple of weeks earlier. If California has, in fact, been “closed” since January, how to explain what have we been doing for the last six months in which we have not been required to stay home? What does it mean to reopen a state that has felt “open” for a long time? I have eaten indoors in restaurants, perused thrift shops, stayed in Airbnbs, and had my haircut and my eyebrows threaded. Practically speaking, the order eliminates mask and occupancy requirements. I don’t mean to trivialize the real consequences of this reopening for small business owners or unemployed service industry workers for whom there is suddenly renewed demand. But on some level, the absurdity of the unrecognized gap between these executive orders does bely the truth of the sort of liminal state in which we have been existing in these past few months, as the vaccine has rolled out, windows have opened, masks have dangled from wrists, and we have grown increasingly comfortable stepping back into the world and enjoying our freedoms.

Though the solstice is not for another week, it finally feels like summer in Oakland. It also feels, suddenly, almost eerily normal. It is warm enough to bare our vaccinated arms and to feel each other’s sticky warmth when we embrace a friend for the first time in years. I feel anxious about wearing a bathing suit after a two year reprieve and weekly loaves of pandemic bread, and try to remember how to comfortably hold a can of beer in the backyard of a casual acquaintance. I haven’t felt such persistent self-consciousness in over a decade; trying to decide how to dress for the world again feels a bit like being 23 when trying to decide who I wanted to be felt closely intertwined with the question of how I should dress. Once again, I experience the post-adolescent awkwardness of experiencing the freedom of deciding who I want to be in this new world.

But also contributing to the sense of being 23 is the rediscovery of excitement for the small freedoms of the cherished summer season — for its long weekends, late sunsets, vacations, and barbecues. I’ve written in the past about dreading summer; when I was single, it was the season I felt the most conspicuously alone. Last summer, I wasn’t alone, but we were lonely, aside from the rare occasion of a park picnic. Ben and I spent summer shuttling between a gloomy Outer Sunset, where evening walks on the beach frequently required a layer of grey Uniqlo puff and a grey wool hat, and a stifling hot LA, where I lacked the comfortable reprieve of friends’ pools and office and movie theatre air conditioning. It was hard to escape the sensation that we were squandering the summer, even as we were not allowed to do much more than what we were doing.

This past weekend we spent the day with friends in Sonoma. It was the sort of casual Saturday excursion that we took for granted in the past - a hike and wine-tasting, squeezing into a picnic table where we shared olives and hummus without a second thought. Ben and I went out to dinner in the neighborhood when we got home, snagging an outdoor table at our corner bistro, even though we didn’t have a reservation. Our waiter told us we didn’t have to wear our masks. The sky was still light as we walked home at 9 o’clock. The day was delightful, in the utterly banal and carefree way of summer Saturdays. It occurred to me that this was exactly the type of day that I might long for when we have a family. There was a freedom in taking a day to pursue only our own desires. And this is precisely the sort of small freedom, I suppose, that so many Americans fought for last summer, as they protested mask mandates and occupancy requirements and stay-at-home orders. Without days like this to rejuvenate us, it’s easy to start to feel like a capitalist wage slave.

And yet, as my state government restores these small freedoms to me, other state governments continue to chip away at freedoms that are far more essential than whether I have to wear a mask at Trader Joe’s or wait to enter a bookstore. For me, it is difficult to tune in too deeply to this bad news, as I try to maintain gratitutde for this sudden and seemingly miraculous revival for life as we know it. I’m the first to admit that I have allowed the Biden presidency to lull me into a state of exhausted complacency and relief. I’m happy to let the Biden Administration try to do the right thing, even as it’s difficult to ignore the dysfunction of Congress and the frightfully rightward lean of our remaining branch of government.

But as checks and balances do their thing in Washington, DC, in Texas, that enormous laboratory of purported democracy, legislators’ continued efforts to create the conservative ideal of America threaten to topple my newfound sense of relief and security. A few weeks before Texas Democrats walked out of the House chamber to thwart a bill that would have enacted severe voting restrictions across the state, the Texas Legislature passed another bill exemplifying the sort of far-right legal ingenuity that we increasingly see emering from Republican-majority state legislatures. On its face, the bill masquerades as a common “heartbeat ban”—a bill which prohibits abortions as early as six weeks, i.e., two weeks after a missed period, when a fetal heartbeat can be first detected, and before many women even know they are pregnant.

While the Supreme Court has recently taken up the question of the constitutionality of a Mississippi statute that bans abortions after 15 weeks, similar “heartbeat” bans have been blocked by federal courts around the country on the grounds that these bans blatantly violate the right to a pre-viability abortion that is enshrined in Roe v. Wade and Planned Parenthood v. Casey. To be more precise, Casey frames “the right of the woman to choose to have an abortion before viability” as the right “to obtain it without undue interference from the State.”¹ Before viability, Justice Sandra Day O’Connor reasoned, the State lacks a sufficient interest “to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure,”² though the opinion nevertheless maintains that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”

In an ostensible effort to find a way around the Supreme Court’s limitation on the State’s ability to limit access to abortion prior to viability, and to make the bill more difficult to challenge by the cadre of constitutional litigators at the Center for Reproductive Rights, the ACLU, and their allies at the nation’s top white-shoe firms, the Texas heartbeat bill takes a novel form. Unlike other abortion bans that we have seen unveiled across the country, which threaten to be enforced by the state, SB 8 provides that the bill “shall be enforced exclusively through … private civil actions.”

What does this mean in layman’s terms? The bill makes civilly liable:

1. a physician “who knowingly performs or induces a violation on a woman” if the physician detects a fetal heartbeat; and

2. any person who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter”; and

3. anyone who “intends to engage in the conduct described by Subdivision (1) or (2).”

In other words, rather than be prosecuted by a district attorney or the attorney general (or anyone else in the Texas government), SB 8 permits anyone (a clinic protestor? a neighborhood busybody?) to bring suit against a physician or someone who “aids or abets” (or intends to aid or abet) the performance of an abortion after six weeks. Anyone with too much time on their hands who agrees to bring suit will be awarded, if they prevail, “statutory damages in an amount of not less than $10,000 for each abortion” performed or aided and abetted, as well as costs and attorney’s fees.³

From a practical standpoint, the bill has obviously chilling consequences for the future of abortion care in Texas. But as a lawyer, scrolling through the 25 pages of the bill felt like reading through a 25 page fed courts⁴ final exam question that you have eight hours to answer and no idea where to begin your analysis. What is immediately clear to me is that the bill creates the sort of surveillance state that has existed in dystopian feminist fiction, in which neighbors are incentivized to report on each other’s participation in someone else’s reproductive decisions. What is also obvious is that SB 8 forecloses the avenue that reproductive rights litigation typically takes: a pre-enforcement challenge brought on behalf of abortion providers against some state actor (the governor, or attorney general), seeking to block enforcement of the law before it can take effect. Here, that sort of challenge won’t work, for starters, because the government is not responsible for enforcing the law.

I’ll translate again. This means that there is little to no barrier for someone to bring suit - they can recover costs and attorney’s fees if they prevail. The promise of a damages award of at least $10,000 also incentivizes the bizarre behavior of trying to find someone aiding and abetting an abortion to bring suit against. Before I incite panic, I will say that SB 8 seems unconstitutional in a whole lot of ways. But on what grounds it will be challenged or struck down remain to be seen.

I hesitate to dwell on the banality of conservative hypocrisy, which is a favorite source of liberal fodder. We drive ourselves crazy with rage as we forward memes reminding us that, in many parts of this country, it is easier to buy a gun than get an abortion. We have watched the same white men who vote for anti-choice politicians suddenly sing the tune of “bodily autonomy” in protest of mask and vaccine mandates. The purported deprivation of maskless jaunts to Costco and baseball games sparked a new culture war in the last year; it churned up such rage that a paramilitary group known as the “Wolverine Watchmen” threatened to kidnap and kill the Democratic Michigan governor, Gretchen Whitmer, as part of a coup to overtake the state government.

While the list of hypocrisies is much longer, I’m less interested in identifying the sources of tension between seemingly conflicting conservative ideologies, and more interested in how the individual mind reconciles them - how one’s fierce ideological belief that one should have the freedom to live however one pleases, without undue intrusion from the government be it in the form of a mask or vaccine, does not seem to extend to pregnant people, people of color, or LGBTQ people. Is it merely an inability or unwillingness to imagine inhabiting the world in a different body under different circumstances? A racist and sexist failure of empathy and imagination? Is it a religious belief or worldview that privileges certain freedoms and views others as sins? To what extent do supporters of SB 8 truly believe that its intrusion on freedom of association and freedom of speech, in addition to reproductive freedom, is justified to the extent it bans abortion and thus purportedly protects unborn human life? I remain fixated on these questions because, I suppose, a part of me still wants to understand where opposition to abortion sits in other people’s bodies and minds, because, on some level, I still want to change their minds - I still want them to see that without reproductive freedom, I wouldn’t be a fully free person. Lurking beneath these questions is my longheld fascination with the distinction between the freedoms we desire for ourselves (or the freedoms we believe ourselves to be entitled to) and the freedoms of which we are comfortable depriving others.

Today, in California, I can attend an indoor pilates reformer class without a mask. This is a miraculous feat of science, and is a moment worthy of celebration. It is also a moment for which many have been aggressively fighting for over a year. But without reproductive freedom (or the ability to vote, or to live here without fear of deportation), today’s reopening would be trivial, if not meaningless. As the Supreme Court prepares to reconsider whether states can ban abortion before viability, I ask myself - and my friends on the left - to what extent I am willing to fight, not just for the survival of my own autonomy (which has never truly been in jeopardy), but for the survival of others’?

1. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992).

2. Id. at 846.

3. If anyone reads this wacko damages provision differently, let me know.

4. “Fed Courts” (i.e., “Federal Courts") is an optional law school course on the intricacies of federal court jurisdiction and procedure. It is generally taken by students in their final year, and is infamous for confounding even the strongest law students. I did not take it.