Bloomberg Law
Sept. 23, 2021, 8:00 AM

Texas Anti-Abortion Law’s Fear Factor Could Backfire

Hila  Keren
Hila Keren
Southwestern Law School

After the new Texas controversial anti-abortion law S.B. 8 went into effect, much was written about how it unlawfully infringes on women’s constitutional rights and causes devastation, particularly to women of color. This is indeed despicable. Yet, a salient aspect of the offense remained unnoticed: The Texas law deliberately aims to generate fear in people.

Such manipulation of human emotions is a severe abuse of legislative power and a colossal breach of the social contract. States are supposed to pass laws that serve their citizens, not the narrow political wishes of their legislators. And they surely should not be allowed to scare people for that unlawful purpose.

The ‘Fear Factor’

The current inattention to this “fear factor” is unsurprising. Conventional beliefs and legal analyses attribute to law both inability and reluctance to engage with human emotions. Law and emotions are tightly intertwined, and legal acts and decisions ordinarily generate emotions.

As a woman, I felt deeply humiliated by how little women’s lives matter, especially once five U.S. Supreme Court justices authorized the Texas legislation. But there is an important difference between legal acts that naturally but incidentally induce emotions and those that intentionally cultivate them.

Texas unleashed private people to sue anyone involved in abortions not only because it cannot use state power to do that; it did so to instigate and disseminate fear. Fear is a universal emotion that arises in response to a threat of harm. Indeed, this is the role and evolutionary explanation of this central emotion: to alert us to dangers and motivate us to cope with them.

Texas’ latest anti-abortion law is structured to threaten anyone involved in the abortion process, from the doctor performing it to the driver bringing the patient to the clinic. It does so by combining several measures.

Most evidently, the legislation creates an unusual and significant risk of economic harm. Every person or entity partaking, in any form, in ending a pregnancy is exposed to the risk of having to pay, in the laws’ words, “not less than $10,000.”

If you doubt the effectiveness of such a threat, note that this is about one-third of the per capita income in Texas. Worse, there is no ceiling on this sum, plus the calculation is per abortion, producing a limitless economic risk, particularly to anyone who may repeatedly engage in some abortion-related activity.

Beyond this direct monetary menace, Texas’ new law inflates the risk inherent in handling lawsuits—the heavy loss of legal fees, time, energy, and mental reserve. With the promise of a hefty bounty, it allows and incentivizes countless people and organizations to sue anyone assisting abortions, thereby actively engendering the well-documented fear of litigation prevalent in the medical field.

Notably, the law further terrorizes potential defendants by restricting the arguments they may raise to protect themselves. For example, it precludes defendants from asserting “the rights of women seeking an abortion as a defense.”

Uncertainty, Ambiguity Increases Fear

To all that, the legislation adds much uncertainty and ambiguity, further enhancing the threat. It is written in lengthy and hyper-complex legalese, much beyond what might be necessary to establish its new cause of action.

This increases fear by impeding defendants’ ability to estimate and mitigate the unique risks the legislation creates. In short, the debated law is purposely designed to terrify anyone who contemplates helping women terminate their pregnancies.

Perhaps counterintuitively, the targeting of emotions by the Texan legislator is a rational strategy. Fear, like all emotions, is designed to create behavioral tendencies that are predictable.

It directs humans to respond to hazards as if they were zebras facing lions, activating in them the famous “fight or flight” reaction. Those who seek to suppress abortions are thus right to calculate that the greater the fright they provoke, the higher the probability that people would take the “flight” route and steer clear of women in need of abortions.

Fight or Flight

But what if more people will develop a “fight” instead of “flight” tendency? Is it possible that the Texan unprecedented approach will backfire, yielding enhanced resistance instead of avoidance?

Recognizing that fighting is a foreseeable consequence of fear can explain, for example, why savvy internet users flooded a website designated for reporting violations of the law with fake tips. It can similarly illuminate Uber and Lyft’s immediate announcement that they would compensate drivers sued under the new law.

The prospect that by cultivating fear, Texas and other states following it would trigger not deterrence, but more challenges to their anti-abortion laws is essential: It offers a sliver of hope in otherwise bleak times.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Hila Keren is associate dean of research and Paul E. Treusch Professor of Law at Southwestern Law School in Los Angeles. She is one of the founders of the “law and emotions” critical approach to law, and a co-author of “Who’s Afraid of Law and the Emotions.”

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