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The Texas Abortion Law Is Only Unpopular If Voters Understand It

Swing-state voters really don’t like the enforcement mechanism of the Texas abortion law. But first, someone has to explain it to them.
September 22, 2021
The Texas Abortion Law Is Only Unpopular If Voters Understand It
A view of the Supreme Court on September 2, 2021 in Washington, DC. The Supreme Court declined to block the new Texas law that prohibits abortions around six weeks into a pregnancy and will let the legal battle play out in the lower courts. (Photo by Drew Angerer/Getty Images)

Whether you approve or disapprove of the new Texas abortion law, which bans abortions after six weeks, its citizen-led enforcement mechanism is certainly novel. And in a pair of focus groups on September 14, we set out to understand what swing voters think of it.

In September’s edition of our monthly Swing Voter Project, we spoke with 10 “Trump-to-Biden” voters across the most competitive states in the 2020 election. The respondents consisted of six Democrats, two Republicans, and two independents.

Eight of the 10 claimed to have some familiarity with the new Texas law. The two who didn’t, however, knew very little about it. “I just knew that there was a headline about it, but I don’t remember which way it was,” said Cindy, 57, from Northampton County, Pennsylvania. And when Stephanie, 38, from Wake County, North Carolina, was asked if the law made an abortion easier or harder to get in Texas, she responded, “Easier.”

Only three of the remaining eight, however, had any idea of how elaborate the enforcement mechanism is. And none of the 10, after we read the specifics to them, were okay with that aspect of the law.

To level-set our focus groups, we shared the following description:

The new Texas law that bans abortions after six weeks of pregnancy includes a $10,000 incentive.

Under the new law, private citizens—including those who live outside of Texas—can sue a person they “reasonably believed” provided an illegal abortion, or assisted someone in getting it in the state, up to four years after the act.

According to the law, private citizens can sue anyone seen to be “aiding and abetting” an abortion—whether or not they have any personal connection to them. Anyone found to have advised, helped pay for, or given a ride to an abortion clinic can be sued, including teachers, parents, clergy, Uber drivers, and friends.

If the plaintiff wins the case, they could be awarded a minimum of $10,000, plus attorneys’ fees. The defendant, on the other hand, would not qualify for legal fee relief, no matter the outcome of the case.

The law further states that a lawsuit can be brought against a person “regardless of whether the person knew or should have known that the abortion would be performed or induced.”

“I guess I’m just really shocked after reading that. I didn’t know that it was that intense of a law that was passed,” said Cindy from Pennsylvania.

This lack of familiarity, despite all the publicity over the past few weeks, could severely hamper liberals’ efforts to mobilize opposition to the Texas legislation. It also could incentivize copycat legislation in other states, if Republicans conclude that retribution at the ballot box is unlikely.

This is good news for Republicans. But here’s the good news for Democrats: Once respondents were made aware of the citizen enforcement provisions in the Texas law, they offered a laundry list of objections:

“This is like big brother’s watching us. . . . You’re interfering with other people’s private lives. . . . This is unconstitutional—I’m sorry. You’re asking us to spy on each other,” complained Gerard, 50, from Wayne County, Michigan.

Chris, 27, from Dallas, agreed: “It’s the ‘Red Scare’ all over again.”

Jennifer, 52, from Douglas County, Georgia, took particular issue with the provision allowing citizens to sue if they “reasonably believed” someone to be implicated in an abortion:

What could you really believe was reasonable? What is the term ‘reasonable’? What does that mean for someone who believes that if I’m an Uber driver and I don’t know that [my passenger is] pregnant and I dropped them off, you can sue me? How was anything reasonable about that?

Carly, 33, from Anoka County, Minnesota, took it a step further still: “I mean this might make somebody suicidal. . . . If you advise your child to get an abortion, you can get sued for that? That’s extreme. I mean that’s kind of taking away our rights, isn’t it?”

The respondents also fixed on the potential for abuse of the court system. The GOP has spent decades demonizing trial lawyers and bemoaning frivolous lawsuits. The party’s support for the Texas law wipes that away:

“As Americans, we should be stopping all these crazy lawsuits. I mean, we sue everybody for everything in America, and now the government or the Texas government is saying, ‘Well, yeah, please let’s do this,’” said Elisa, 53, from Martin County, Florida.

Gerard from Michigan added, “It’s going to cause a logjam in the judicial system, and I think other, probably more important matters, will be shoved to the side.”

Even those who identified as pro-life took issue with the enforcement mechanism of the Texas law. Stephanie from North Carolina was the only one of the 10 who came close to supporting the law. But even she found the civil lawsuit enforcement to be problematic: “[I am troubled by] the incentive of making money for nothing, per se, as opposed to [doing] the right thing [such as reporting a crime] . . . [The state could] end up having a lot of innocent people sued, just because they’re trying to get that $10,000.”

Republican leaders had better hope that swing voters don’t learn about the specifics of the Texas abortion law’s enforcement mechanism, because it’s toxic.

Luckily for them, they have human nature on their side: Understanding how the law works requires sitting through an explanation—something that most voters probably won’t take the time to do.

And Republicans may have another factor in their favor: while there was significant outrage in our groups in reaction to the law, none of the respondents listed abortion as the issue that concerns them most. And many felt that what Texas has done was less relevant to their respective states.

“If I lived in Texas, it would be more of a hot button issue for me,” said Erik, 42.

He lives in Las Vegas.

Rich Thau and Susie Pieper

Rich Thau is the president of the research firm Engagious, which specializes in message testing and message refinement for trade associations and advocacy groups. He is also the moderator of the Swing Voter Project, conducted in partnership with Schlesinger Group. Susie Pieper is a student at Haverford College and an intern at Engagious.