Excerpted From: Madeleine M. Plasencia, Assemblages and Actor Networks in the Borderlands--The Apposition of Reproductive Rights along the Mexican-American Border, 24 J.L. Soc'y 115 (121 Footnotes) (Full Document)

MadeleinePlasenciaI have been thinking about the network concept within multiple human geographies, travel, and law frameworks. Humans inhabit the social dynamics of actor networks. In turn, new legal frameworks create new assemblages for human interaction, “produc[ing] and connect[ing] multiple territories to perform a distinct political geography.” This socio-legal mapping connects multiple contiguous political territories. When regulating reproductive freedom, a meta version of networks legally and metaphorically interconnects Texas, México, and parts between and beyond. By using the tools of network analysis in the Assemblage and Actor-Network Theory, this paper offers a novel socio-legal theory for understanding the broader impacts of state laws aimed at controlling actors within the domain of reproductive rights through the legal conceit posed by Texas Senate Bill 8 (S. B. 8)--the Texas Heartbeat Act--at issue in Whole Woman's Health v. Jackson.

The operation of S. B. 8 is uniquely punitive for the medical providers sued under this law. Its enforcement provisions shift “command control” from state officials normally responsible for enforcing the law to any individual who chooses to pursue, through private civil action, an injunction and statutory damages awards against physicians who provide healthcare connected to terminating a pregnancy. This enforcement shift from state actors to private plaintiffs has profound implications. State actors are constitutionally accountable in a court of law for violations of constitutional rights under traditional rules and processes and subject to procedural due process of law. Private actors are not.

Pitting neighbor against neighbor has an eerie presence in the history of war, especially in autocratic states, where tactics promoting division and hatred within the body politic appear as a rule, not an exception in fomenting civil war. All it takes to destroy a civil society is for an authoritarian leader to inject the virus of hatred. As international journalist Richard Cohen has reported until people start killing each other, they are neighbors and friends, living side by side; “it does not take much.” As Cohen noted, the leader must only designate your neighbor as your enemy, and there it begins.

In Texas, S. B. 8 minimizes the role of human discretion and judgment and automates the role of the autocratic leader. This paper shows how S. B. 8 autocatalyzes a self-maintained, autopoietically created social system. The very framing of the patient's medical care and choices is predetermined as a contingent selection. That is, the physician's encounter with the patient is bound by preselected contingencies as medical data related to pregnancy may be actualized solely within the closed social system that forbids the termination of a pregnancy. Since S. B. 8 does away with traditional requirements of nexus and standing to sue, it outsources enforcement to the world. By so doing, the law pits neighbor against neighbor. It designates as potential suspects those who perform, induce, or assist in a termination of pregnancy. The Social Actor-Network Theory reveals the law as an actor or actant that profoundly changes the character of pre-existing social relationships. In place of supportive networks for the thriving of its people, the Texas law reconstitutes preexisting networks. It empowers new actors. It creates new vulnerabilities, and these new networks of power and vulnerability generate new social relations of neighbor contra neighbor--as in guerilla forces--that are virulent and vicious rather than supportive and compassionate.

S. B. 8 reopens abortion rights' black boxes--settled understandings and knowledge--dispersing and disbanding actors in established networks related to the boundary of viability in U.S. abortion law and inducing actors to create new relationships and associations within the framework of enforcing the anti-abortion law. To analyze abortion law and its enforcement through surveillance networks of fetal-heartbeat-actants, doctor-nurse-reporters, donors, neighbor-snitches, and recalcitrant acompañantes, we need to understand the Actor-Network Theory.

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The long shadow cast by the Court's decision in Dobbs and the enactment of S. B. 8 has spawned two phenomena in real space in the United States. First, businesses have popped up within and alongside the political and geographical boundaries of Texas, offering private adoption services for single mothers to offer up their children for placement with a new family. This is not a new idea; it is a booming business that has been thriving for years. Voluntourism operations have been long-standing in Latin America, where highly profitable “orphanages” specialize in placing children with U.S. adoptive parents willing to pay between $20,000 and $40,000 in adoption costs and expenses. Secondly, accounts of states helping border states, in a manner analogous to the Fugitive Slave Act, establishing mobile abortion clinics in México, and handling the rise in emergency medical treatment problems emergent in Texas related to ectopic and miscarriages, are already taking place. In the volatile indeterminacy of these activated networks, the black-boxed fundamental right to choose secured in the Roe/Casey legal framework has given way to newly restrictive interpretations delegated to the states. Other constitutional rights, as presently constructed in law, may disappear altogether. As Latour says,

Depending on which path we follow, the plot ends very differently. Either Little Red Riding Hood will be able to reach grandma's house, or else she will be kidnapped in the forest. How can one plod along safely from one mediator to the next without being swallowed whole by the Wolf of Context?

Choosing between two alternate metaphorical figures--whether the Court is Little Red Riding Hood or the Big Bad Wolf--is an unnecessary binary. This Court has been swallowed whole by the context of this political and historical moment and the arrogance of this pro tem consolidated power, even as it swallows all the precedents with which it professes to disagree.

Madeleine M. Plasencia, B.A. Cornell University; J.D. University of Pennsylvania. Previously tenured Associate Professor at the University of Tulsa College of Law, presently teaching at the University of Miami School of Law; Co-Founder and Co-Director of LisaLeine Productions; continuing Chair of the Civil Rights Section of the Hispanic National Bar Association.