Conservative Activism III: Controlling the Liberal Field

The Vise: A third version of conservative activism involves establishing religious right demands as a form of partial social control that is total in the religious right’s areas of concern. With trans teens, the goal of Texas policy is to prevent trans children and teenagers from making a full transition and Texas state government seeks to exercise total control over all parts of a trans teen’s social environment that could aid in that transition. In Texas, first Attorney General Ken Paxton and then Governor Abbott declared health care for trans teens (puberty blockers, hormone therapy, gender affirming surgeries, etc) to be a form of child abuse, then ordered the parents of trans teens to be investigated by the Department of Family and Protective services, and finally stipulated that medical personnel and teachers who do not report such procedures were subject to criminal penalties. Likewise, “there are similar reporting requirements and criminal penalties for members of the general public.” Previously, the conservative “war on tran kids” was limited to “discriminating” against trans women by preventing trans women from using girls bathrooms and participating in women’s sports. What Texas proposed was treating normal medical care for trans teenagers as the crime of child abuse on the part of parents and also criminalizing any support for trans teens by medical people, teachers, friends of the family, and the like. Starting from their bigotry against transsexuality, Texas Republicans designed a system that controls trans teens by criminalizing the most important forms of support that can be given them and thus also serves to control liberal parents, teachers, and medical personnel by criminalizing their efforts.

Generally, people on the left think of social issues like transsexuality in terms of the natural rights of self-determination and the denial of those rights by conservatives. But it’s important to recognize that there are systems of control involved. In the case of transsexual teens, the system of control contemplated by the Attorney General and Governor is “partial” in the sense that it only affects one aspect of teen life. Trans teens are as free to go to school, work at various jobs, shop, and hang out as cis teens. They’re also free to wear clothes, do make-up, and adopt personal manners according to their gender as they define it. But Texas seeks “total control” over efforts to make a physical gender transition and Texas policy is to isolate trans teens completely from the environment of family, medical, and institutional support needed to address trans health issues. Where racial segregation once exercised direct control over the black population of Texas and other Southern states, Texas is shaping a totalitarian environment for trans teens by exercising direct legal control over families and other support networks. By exercising coercion direction on sympathetic family, medical, and social service constituencies, Texas expect to prevent trans teens from engaging in gender transition altogether.

The other dimension of control is unpredictability. Texas District Judge Amy Clark Meachum has both blocked Gov Abbott from enforcing his directive on trans teens and indicated that parents suing Gov. Abbott would likely win at trial. However, the families of trans teens and their medical providers are still on edge because Attorney General and conservative political warrior Attorney General Ken Paxton has indicated that he will continue to investigate trans families. Given the threat of continuing investigations, trans parents are facing an unpredictability about what they can and can not legally do which is intended to make them more cautious and serves as a mechanism of control.

The Texas abortion law took a complementary tact even further by mandating civil lawsuits as it’s enforcement mechanism. That is also the case with the Texas abortion law. The two main provisions of the Texas Heartbeat Act of 2021 are outlawing abortion procedures after six weeks (when fetal heart activity can be first detected) and relying solely on enforcement by private individuals through civil lawsuits, rather than having state officials enforce the law with criminal or civil penalties. Where Texas Republicans did not outlaw transsexuality in the case of Governor Abbott’s messages on the treatment of trans teens, they did outlaw abortion after six weeks. The Texas heartbeat act specifically stated that women had no “right” to seek abortions in the first place–“Sec. 171.206. . . This subchapter does not create or recognize a right to abortion before a fetal heartbeat is detected.” Even though the Heartbeat Act acknowledges that the Supreme Court recognizes a right to an abortion, the state of Texas explicitly refuses to recognize such a right and considers any abortion to be a kind of crime even though it’s not forbidden by that law.

It’s within a logic of defining abortion as inherently criminal that Texas developed its vigilante enforcement mechanism. “Fetal heartbeat” bills from other states had already been overturned by the courts before they could go into effect and Texas sought to evade Supreme Court review by keeping state government out of enforcing their abortion ban and thus making it more difficult if not impossible to sue the state.

The Vise: A third version of conservative activism involves establishing religious right demands as a form of partial social control that is total in the religious right’s areas of concern. With trans teens, the goal of Texas policy is to prevent trans children and teenagers from making a full transition and Texas state government seeks to exercise total control over all parts of a trans teen’s social environment that could aid in that transition. In Texas, first Attorney General Ken Paxton and then Governor Abbott declared health care for trans teens (puberty blockers, hormone therapy, gender affirming surgeries, etc) to be a form of child abuse, then ordered the parents of trans teens to be investigated by the Department of Family and Protective services, and finally stipulated that medical personnel and teachers who do not report such procedures were subject to criminal penalties. Likewise, “there are similar reporting requirements and criminal penalties for members of the general public.” Previously, the conservative “war on tran kids” was limited to “discriminating” against trans women by preventing trans women from using girls bathrooms and participating in women’s sports. What Texas proposed was treating normal medical care for trans teenagers as the crime of child abuse on the part of parents and also criminalizing any support for trans teens by medical people, teachers, friends of the family, and the like. Starting from their bigotry against transsexuality, Texas Republicans designed a system that controls trans teens by criminalizing the most important forms of support that can be given them and thus also serves to control liberal parents, teachers, and medical personnel by criminalizing their efforts.

Generally, people on the left think of social issues like transsexuality in terms of the natural rights of self-determination and the denial of those rights by conservatives. But it’s important to recognize that there are systems of control involved. In the case of transsexual teens, the system of control contemplated by the Attorney General and Governor is “partial” in the sense that it only affects one aspect of teen life. Trans teens are as free to go to school, work at various jobs, shop, and hang out as cis teens. They’re also free to wear clothes, do make-up, and adopt personal manners according to their gender as they define it. But Texas seeks “total control” over efforts to make a physical gender transition and Texas policy is to isolate trans teens completely from the environment of family, medical, and institutional support needed to address trans health issues. Where racial segregation once exercised direct control over the black population of Texas and other Southern states, Texas is shaping a totalitarian environment for trans teens by exercising direct legal control over families and other support networks. By exercising coercion direction on sympathetic family, medical, and social service constituencies, Texas expect to prevent trans teens from engaging in gender transition altogether.

The other dimension of control is unpredictability. Texas District Judge Amy Clark Meachum has both blocked Gov Abbott from enforcing his directive on trans teens and indicated that parents suing Gov. Abbott would likely win at trial. However, the families of trans teens and their medical providers are still on edge because Attorney General and conservative political warrior Attorney General Ken Paxton has indicated that he will continue to investigate trans families. Given the threat of continuing investigations, trans parents are facing an unpredictability about what they can and can not legally do which is intended to make them more cautious and serves as a mechanism of control.

The Texas abortion law took a complementary tact even further by mandating civil lawsuits as it’s enforcement mechanism. That is also the case with the Texas abortion law. The two main provisions of the Texas Heartbeat Act of 2021 are outlawing abortion procedures after six weeks (when fetal heart activity can be first detected) and relying solely on enforcement by private individuals through civil lawsuits, rather than having state officials enforce the law with criminal or civil penalties. Where Texas Republicans did not outlaw transsexuality in the case of Governor Abbott’s messages on the treatment of trans teens, they did outlaw abortion after six weeks. The Texas heartbeat act specifically stated that women had no “right” to seek abortions in the first place–“Sec. 171.206. . . This subchapter does not create or recognize a right to abortion before a fetal heartbeat is detected.” Even though the Heartbeat Act acknowledges that the Supreme Court recognizes a right to an abortion, the state of Texas explicitly refuses to recognize such a right and considers any abortion to be a kind of crime even though it’s not forbidden by that law.

It’s within a logic of defining abortion as inherently criminal that Texas developed its vigilante enforcement mechanism. “Fetal heartbeat” bills from other states had already been overturned by the courts before they could go into effect and Texas sought to evade Supreme Court review by keeping state government out of enforcing their abortion ban and thus making it impossible to sue the state. According to the statute:

Any person, other than an officer or employee of a state or local government entity in this state, may bring a civil action against any person who: 1. performs or induces an abortion in violation of this subchapter; knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the coasts 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. If a claimant prevails in an action brought under this section, the court shall award: 1. injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet the violations of this subchapter; 2. statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided and abetted; and 3. costs and attorney’s fees.

As was the case with trans teens, the Texas Abortion Law seeks to exercise legal power over both the family support network and liberal social institutions providing support for women seeking abortions. However, where the Texas Republicans exercised the direct power of the state to prevent trans teens from transitioning, they’ve decided to rely on private lawsuits to enforce the ban on abortions after 6 weeks. “Any person . . . may bring a civil action against any person who” who performs or knowingly aids in performing an illegal abortion as defined by the Texas Heartbeat Act. If the plaintiff prevailed, they would be able to collect “statutory damages in an amount of not less than $10,000 for each abortion aided by the defendant. According to Supreme Court Justice Sotomayor, “the Texas legislature … deputized the state’s citizens as bounty hunters” empowered to prosecute “their neighbors’ medical procedures.” Sotomayor stresses the surveillance of the women receiving abortions, but the direct targets of the law are the doctors, nurses, family members, women’s groups like Planned Parenthood, and insurance companies that provide various kinds of aid to women receiving abortions. They are the ones who are liable. In essence, the Texas Abortion Law gives conservative abortion opponents the right to keep wide swaths of the Texas population under surveillance. According to Judge Robert Pittman, Texas turns private citizens, i.e., conservative activists and conservative organizations, into “state actors.”–

The State chose to deputize them; the State chose to remove any requirement that they suffer an injury to bring suit (an injury is almost always required to bring suit); and the State chose to incentivize them by automatically awarding them damages of at least $10,000 if their suit is successful.”

In seeking to deprive trans teens and pregnant women of human rights, conservative activists have started to create a vision of a “conservative order” in which government and activists combine to coerce not only the direct targets of laws but also the various support networks for the left, women’s, racial minority, and sexual minority constituencies. To deny rights to large sections of the American population, conservatives are starting to work out ways to apply coercive power to what will turn out to be the majority of American society.

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