Texas’s Handmaid’s Tale gives everyone but women reproductive control

A recent Texas case is testing just how much control a woman actually has over her body in a world without a constitutional right to abortion.  

When the Supreme Court overturned Roe v. Wade in 2022, the Dobbs majority claimed that the impact would be trivial on pregnant women. 

The opinion pointed to alleged protections against pregnancy discrimination, the ability to put children up for adoption, the widespread availability of health care and the fact that women have the right to vote on abortion. In a concurrence, recognizing that states would adopt different approaches to abortion, Justice Kavanaugh insisted there was a constitutional right to travel. 

In contrast, the dissent predicted that “one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”   

One thing that the majority ignored and that the dissent didn’t directly address is that Dobbs makes it possible for men — not just legislatures, but also partners — to control women’s bodies. 

In the Texas case, Collin Davis tried to stop his ex-partner from traveling out of state to get an abortion. The two had dated for a few months when she discovered she was pregnant. When he learned that she wanted an abortion, he found an attorney:  Jonathan Mitchell, the architect of Texas’s SB 8 “bounty hunter” abortion ban. 

Mitchell sent the woman a letter, threatening that if she obtained an abortion, he would “pursue wrongful-death claims against anyone involved in the killing of his unborn child.”  

Abortion is essentially illegal in Texas after six weeks, and she went to Colorado, where she obtained a legal abortion.  

This case implicates not only questions about one’s right to travel but also how much control a partner has over decisions a pregnant woman makes about her body.  

Until 2022, U.S. law was clear that a woman did not need to inform her partner that she was seeking an abortion, much less get permission to do so. In fact, in Planned Parenthood v. Casey, which affirmed the basic constitutional right to abortion in 1992, the court overturned a state law that required spousal notification before a woman could obtain an abortion. 

The court reasoned that America had moved past the time when “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state.” Subsequent cases, including Obergefell v. Hodges, which guaranteed same-sex couples the right to marry, similarly recognized the changing nature of women’s roles. 

The Dobbs opinion, however, has called all of that into question. It permits a state to impose restrictions on abortion where there is a “rational basis” for doing so. Those restrictions might well include allowing a partner to veto the decision to obtain an abortion under the theory that it supports the state’s legitimate interests in showing “respect for and preservation of prenatal life at all stages of development.”  

The court has previously stated that a pregnant person’s husband has a “deep and proper concern and interest . . . in his wife’s pregnancy and in the growth and development of the fetus she is carrying.” State law could require, for example, written consent from a male partner before abortion pills could be prescribed. Perhaps legislatures might be generous enough to allow abortion without consent in cases of rape or incest. 

Of course, Davis is only suing his ex-partner, and there is a distinction between a state law restricting a woman’s ability to travel for an abortion and a partner attempting to prevent her from doing so. 

But in this case, Davis is trying to use state actors to restrict her movements by trying to depose his ex-partner and petitioning a court to make her provide information about the alleged abortion and anyone who may have helped her seek it. If the court supports his efforts, it is a form of state action that gives a male partner the ability to control not only the abortion decision but also the woman’s ability to travel.  

The second issue is the ex-partner’s ability to leave Texas to get an abortion in Colorado. While restrictions on her travel might not be constitutional based on several older cases and Justice Kavanaugh’s concurrence in Dobbs, many in the anti-abortion movement are testing those theories. 

For example, a model “abortion trafficking” ban is being promoted by Mark Lee Dickson, a conservative pastor who has worked with Mitchell. These laws would prohibit helping anyone cross state lines for an abortion under the theory that such abortions are trafficking because “the unborn child is always taken against their will.”  

The model law has been adopted in a few jurisdictions in Texas and relies on the same SB-8 abortion ban strategy that seeks to evade constitutional review by enforcing the ban through civil lawsuits rather than law enforcement.  

Moreover, even if she were able to travel, those who helped her travel might be liable under the state’s wrongful death statute. Texas law allows one to recover for “an injury that causes an individual’s death.” The statutory definition of “an individual” includes “an unborn child at every stage of gestation from fertilization until birth.” 

Such a statute is also at issue in another Texas case, in which a man has sued three friends of his ex-wife, claiming that they helped her procure an abortion. 

These lawsuits are at an early stage. But they signal that efforts in our post-Dobbs world to control women’s bodies in the name of protecting “prenatal life” are just starting. 

Even the presumptive nominee for the Republican Party, former President Donald Trump, has said that states could monitor women’s pregnancies to support abortion bans. If these efforts succeed, women may not only be second-class citizens vis-a-vis men but also vis-a-vis the fetuses and maybe even embryos.

​​Sonia Suter is a professor of law at The George Washington University Law School and founding director of the Health Law Initiative. 

Naomi Cahn is a professor of law at the University of Virginia School of Law and co-author of “Fair Shake” (Simon & Schuster, 2024).