Fear, Confusion and Phorid Flies
Or why abortion ban exceptions aren't actual exceptions if everyone is scared of what happens next
If you live in Austin, there’s a good chance you have heard about the phorid flies out at Brackenridge Lab.
Scientists at the local lab have been studying the tiny flies for decades as means of natural pest control against red imported fire ants. The flies' gruesome reproductive cycle — which starts with a phorid fly injecting a fire ant with a fertilized egg and ends with the ant’s head falling off and a new phorid fly emerging from it —perennially makes headlines, especially around Halloween.
Any fire ant that encounters a phorid fly is a goner. But the actual pest control potential of unleashing phorid flies on ants doesn’t hinge on the phorid flies directly wiping out colonies – just scaring them.
Worker ants are terrified of phorid flies. They run for cover and hide when the flies are nearby. It's an understandable reaction. But it can compromise the entire colony if the fear keeps the ants from venturing out for food for too long.
The menace is enough to cause significant harm.
The power of menace was brought to mind earlier this month seeing how the Texas Attorney General Ken Paxton responded to the case of Kate Cox, a woman who sought an exception to Texas’ abortion ban so she could terminate a doomed pregnancy that threatened her health and future fertility.
The same day that Cox was granted an exception by a district judge, Paxton appealed the decision and sent a menacing letter to the three hospitals where Cox’s doctor has privileges.
In the letter, Paxton warned that the district judge’s ruling offered no protection to “hospitals, doctors, or anyone else” from the three eras of antiabortion laws on the books in Texas.
According to Texas law, a woman can have an abortion if sustaining the pregnancy risks her life or causes major bodily harm. But only a doctor can make that call. In his letter, Paxton writes “[the district judge who granted the abortion] is not medically qualified to make this determination and it should not be relied upon.”
Yet at the same time, Texas allows most anyone the opportunity to bring a doctor's decision to perform an abortion into question. The different eras of abortion laws and their criminal and civil penalties creates a legal arsenal that enables – and emboldens – a whole cast of characters to bring suit against people who help women get abortions.
When the punishment for an abortion deemed illegal ranges from giving any rando who files a civil suit at least $10,000 and paying their legal fees to a first-degree felony conviction that comes with 99 years in prison and the removal of their state medical license, I understand why doctors aren’t taking any chances.
In Texas, a dead or seriously injured patient who was forced to carry a dangerous pregnancy arguably presents less of a legal liability than a living patient who was denied an abortion. Given this situation, it makes sense why abortion access lawsuits in the state post-Roe have focused on clarifying the law. Doctors want to be able to help their patients. Women don't want to suffer.
Yet so far, the state has refused to engage with the question of how sick is sick enough for a permissible abortion. In fact, lawyers representing the state have argued that women who have personally experienced being denied abortion care during dangerous pregnancies don’t have the right to ask that question.
In the case Zurawski v. State of Texas, which was brought before the Texas Supreme Court in November, state attorneys argued that the 20 women seeking clarification around the law didn’t have standing to bring suit because they weren’t currently seeking abortions.
The case’s lead plaintiff, Amanda Zurawski, went into septic shock twice as the result of being denied an abortion; many of the other women on the case were carrying doomed pregnancies that complicated labor and delivery and took an excruciating mental toll. (You can read their stories here.)
But to the state attorneys, that didn’t matter. We’ll see what the court thinks when they issue a ruling. But seeing how they ruled in the Cox case, it doesn’t bode well.
According to the Texas Tribune, the Zurawski case directly inspired Cox to file her own lawsuit to access abortion care with a district court. Unlike those 20 women, she at the time was carrying a risky pregnancy and was seeking an abortion. By the state’s own measure, she had standing.
But that wasn’t enough for the Texas Supreme Court, who heard Cox’s case after Paxton appealed the district court’s ruling, to lend any clarity to the matter. They overturned the lower court’s decision that granted Cox access to an abortion in Texas, and kicked the ultimate decision back to the doctor.
Cox was back where she started before the lawsuit. She ended up leaving Texas to get the abortion she needed, one among the thousands of others who have been forced to leave the state to end a pregnancy.
Attorney General Paxton is a crook and a cheat with a long track record of shady pay-for-play politicking. This summer he was impeached by the Texas House after being accused of bribery and corruption. The Texas Senate acquitted him, and Republican voters in Texas still support him by a 2-to-1 margin according to the Texas Tribune.
I imagine his brush with accountability has done nothing but embolden him to play to the most extremist, antiabortion factions of his party. I worry that in the near future a threatening letter might not be enough. Paxton, or others like him, won’t be content with menace. They might want to start to see heads roll too.
For now, the abortion landscape of the state remains akin to a fire ant hill surrounded by phorid flies. The menace of what could happen is enough to do real harm.
Phorid flies are pretty gross, but that's nature for you. Those anti abortion loons usually manage to be even grosser