As a Harvard graduate student and mother of three children, Zainab Merchant was accustomed to traveling frequently from her home in Orlando to Boston for her studies. In 2016, that all changed.

Those trips suddenly became ordeals: hours of delay at the airport waiting for government approval for her to fly, followed by lengthy, intrusive physical searches at TSA checkpoints, in full view of other travelers. When she and her family reentered the United States from travel abroad, they faced six hours of detention overnight while their six-month-old baby shivered and cried. On other trips, border officers searched her smartphone and questioned her about her religion, political opinions, and whether she knew anyone who had been “radicalized.”

For years, Zainab faced these kinds of physical searches, detention, and harassment every time she tried to fly or reenter the country — with no explanation or justification from the government.

Zainab’s experience exemplifies the consequences of the federal watchlisting system — a system that operates in secret and lacks even basic due process safeguards. It also overwhelmingly targets Muslims, immigrants, and communities of color — a booming echo of past discriminatory policies targeting groups, such as Japanese Americans, wrongly considered threats.

This unfair focus on Brown, Black, and Muslim communities is due in large part to loopholes in governing internal policies: the guidance on federal law enforcement agencies’ use of race. The Departments of Justice and Homeland Security both purport to ban biased profiling, but their guidance permits it in the national security and border contexts, which include vast federal investigative functions and operations at airports and borders. These exceptions enable the watchlisting system to exist and fuel its explosive growth.

We urgently need to end biased law enforcement profiling and fundamentally overhaul the watchlisting system because they violate basic rights and norms: transparency, accountability, due process, and equal protection under the law.

The current watchlisting system is almost entirely a creature of the post-9/11 period. As of the Sept. 11, 2001, attacks, the Department of Transportation maintained a list with 20-odd people suspected of posing a danger to aviation security. Today, according to the most recent information available, the government’s master watchlist, called the Terrorist Screening Database (TSDB), includes well over one million people. The Terrorist Screening Center within the FBI maintains the TSDB and disseminates it to more than 18,000 federal, state, and local law enforcement agencies; more than 500 private entities; and scores of foreign governments.

Although this system is unique in size and scope, it is not unprecedented. During the 20th century, in response to successive waves of hysteria surrounding conflict or the Cold War, the government used various lists to target alleged communist sympathizers, immigrants, and civil rights activists. Courts and the public eventually repudiated these lists as wrong and unfair, but only after lives and reputations had been left in tatters.

The current watchlisting system is an extreme version of these measures. It uses vague criteria and low, exception-ridden standards to place people on watchlists — essentially, guilt by aspersion or association. It also relegates individuals and groups the government deems suspect to second-class status without even basic due process protections. But unlike the lists of the past, we’ve had no similar reckoning for the current watchlisting system.

Today’s watchlists may have eluded broader scrutiny in part because their harms are not widely known outside the communities that experience them. Indeed, “watchlist” is a misnomer that masks how pernicious this system is. Placement in the TSDB system has acute and lasting consequences that can include:

• Inability to travel by air to, from, or over the U.S. because of placement on the No Fly List, which is a subset of the TSDB;
• Invasive physical searches and heightened scrutiny at TSA checkpoints every time a watchlisted person seeks to fly;
• Prolonged detention, interrogation, and physical searches at U.S. borders and ports of entry;
• Extended traffic stops and searches by state and local law enforcement officers;
• Detention, interrogation, surveillance, and harassment by foreign government officials;
• Inability to become a naturalized U.S. citizen or permanent resident, or obtain other immigration benefits, because of lengthy delay or pretextual denial of applications;
• Unexplained denial of visa applications; and
• Difficulty obtaining employment that requires a background check.

These consequences can ruin a person’s life, and they barely hint at the pain, confusion, and stigma that comes with wrongly being labeled a potential terrorist.

The government’s failure to provide a meaningful remedy for people on the lists compounds these harms. DHS’s redress system — inaptly called the Traveler Redress Inquiry Program, or DHS “TRIP” — makes a mockery of due process. When people experiencing harm from placement on the list submit a petition through this system, the government refuses to confirm or deny whether the submitter is even on a watchlist. They receive zero evidence or reasons for their placement on the watchlist, nor are they afforded a hearing before a neutral decision maker. Unsurprisingly, without any notice of the basis for their placement on a watchlist, people can’t correct government mistakes or misplaced suspicion and clear their names.

In 2009, our clients challenged the No Fly List redress process, and as a result of that lawsuit, the government now notifies U.S. citizens and permanent residents if they are on the No Fly List and may provide an “unclassified summary” of reasons why. The court unduly deferred to the government in upholding that revised process, which remains unconstitutional: The government still withholds reasons and evidence from people on the list, and it doesn’t provide any live hearing.

The difficulty of challenging watchlist placement means that people often languish on the list indefinitely. And because the government fights in court against defending its decisions to place people on watchlists, there’s little incentive for it to be rigorous about placement or to remove people who should not be — or never should have been — watchlisted. Absent that incentive, the watchlist simply continues to grow.

Another result of the lack of rigorous oversight and safeguards is that federal law enforcement officers use placement on the watchlist as leverage to try to coerce people to become informants — a phenomenon that is both corrosive and well-documented.

Disturbingly, the watchlisting system is not only expanding; it is evolving. Numerous federal agencies now employ automated tools that purport to identify “unknown threats” based on secret criteria. Individuals flagged by these systems experience many of the same consequences as formal watchlisting, such as travel problems or visa denials, without even the nominal redress procedures through DHS TRIP. And as agencies have vacuumed up biometric data from various sources, they’re using it to search for matches against watchlist data in new contexts such as building security. The government has even created a whole new watchlisting system for people suspected of some involvement in “transnational” crime — a list about which even less is known than the TSDB.

Congress and the executive branch must recognize biased profiling and the watchlisting system for what they are: an affront to the Constitution and the values we claim to hold dear. At a bare minimum, DOJ and DHS should revise their guidance to ban biased profiling, with no border or national security-related exceptions. Congress should also pass legislation barring biased profiling by law enforcement at all levels.

Further, the Biden administration should bar agencies from using watchlist information in ways that impact people’s liberty or property without rigorous due process safeguards, including notice of the reasons for watchlist placement and an opportunity to be heard before a neutral decision maker.

Former FBI agent Terry Albury said it well: “There is this mythology surrounding the war on terrorism, and the FBI, that has given agents the power to ruin the lives of completely innocent people based solely on what part of the world they came from, or what religion they practice, or the color of their skin.” That power cannot be squared with the Constitution or basic fairness. We need these abuses to end.

Sometimes I’m truly embarrassed to be from Texas.

I moved to Las Vegas from San Antonio in 2017 for my job, but I keep abreast of the politics, especially the archaic abortion regulations. However SB8, Texas’ law banning abortions at 6 weeks, is stunning in its absurdity. It is also stunning in exactly how it was enacted.

Beyond the absolute insanity that is banning mask mandates but making it legal to sue an Uber driver that dropped a (hardly) pregnant woman off at Whole Woman’s Health, there is the way SCOTUS handled its review of the law.

In 2016, Whole Woman’s Health v. Hellerstedt was decided by the U.S. Supreme Court after the usual, multi-year process of appeals, discovery, and arguments. Ultimately, the court decided that HB2, the restrictive abortion law at issue in the case, “constitutes an ‘undue burden’ on (a person’s) constitutional right to (seek an abortion).”

As the late Justice Ginsburg so succinctly stated: “It is beyond rational belief that HB2 could genuinely protect the health of (people seeking abortions), and certain that the law ‘would simply make it more difficult for them to obtain abortion.’”

SB8, however, did not similarly require years to review. Instead, SCOTUS decided to allow the law, enacted in May, to stand after issuing a decision via its “shadow docket.” As Justice Sotomayor wrote in her dissent: “The Court’s order is stunning.”

In a shadow docket, lifechanging decisions are made in the blink of an eye, without the usual process and without the sheer volume of information typically required to analyze the constitutionality of a law.

“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” as Moira Donegan wrote in The Guardian. To bypass the typical review process for appeals, ordinarily a party could show the court that they would be irreparably harmed if the court did not intervene. However, as Donegan points out, “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”

This is extremely evident in the court’s decision to allow SB8 to remain law, despite the fact that pregnant people seeking abortion care in Texas will very obviously be irreparably harmed by being forced to carry pregnancies to term in clear violation of their constitutional right to abortion.

In Nevada, abortions up to 24 weeks are still legal, and will remain so. Our state Constitution guarantees this right, and it can only be changed by a vote of the people.

What we can do now is support our Texas friends. Some may travel to friendlier states for their reproductive care needs. New Mexico will probably see an influx of people seeking abortions, and eventually, I imagine the West will start to see some as well. The best way to show support is by donating to organizations who are doing the real work: Abortion clinics and the funds that help offset the costs of the procedures.

• Texas Equal Access Fund - Texas Equal Access Fund provides funding to low-income people in the north, east, and Panhandle regions of Texas who can’t afford an abortion. It also offers emotional support through a confidential text line, support group, and virtual clinic companion program
• Fund Texas Choice - The Dallas-based nonprofit Fund Texas Choice assists Texas residents with lodging and transportation expenses to abortion clinics in and out of state. It also provides information on organizations that can help with funding the procedure.
• Lilith Fund - The Lilith Fund, an Austin-based nonprofit, provides direct financial assistance to Texans in central and southern regions of the state who need an abortion. It also offers an emotional-support hotline.
• Jane’s Due Process - Jane’s Due Process helps young Texans navigate parental-consent laws and confidentially access abortion and birth control. It offers Texas teens and young people free legal support, one-on-one case management, and a text line for those needing information on birth control and family-planning services without parental involvement.
• Whole Woman’s Health - Whole Woman’s Health is an independent abortion provider that has gone to the Supreme Court multiple times to fight for abortion access in Texas. It has clinics across central and north Texas, as well as in four other states. It also provides services to the nonprofit organization Whole Woman’s Health Alliance (WWHA), which seeks to open abortion clinics in parts of the country most impacted by anti-abortion legislation.
• Indigenous Women Rising - Indigenous Women Rising (IWR) started in 2014 to bring attention to Indigenous women who relied on Indian Health Services for health care being denied access to Plan B. The group has its own abortion fund that’s open to all Indigenous folks in the U.S. and Canada who are seeking one. The fund also helps with food, gas, and child-care costs.
• The Afiya Center - The Afiya Center, or TAC for short, is a reproductive-justice organization in North Texas that provides refuge, education, and other resources to Black women. The center has its own “economic enrichment campaign” focused on funding projects for women of color living with HIV/AIDS (and those at risk). It also supports programs that are providing abortion access in the state.
• Frontera Fund - Frontera Fund works to make abortion accessible across the Rio Grande Valley, providing financial assistance regardless of immigration status or gender identity. It usually funds anywhere between $100 and $600 of abortion costs and sends a voucher to a clinic with your name and appointment information.

By Carla Ramazan, Founder, Wild West Access Fund

In May, Texas Gov. Greg Abbott signed a near total ban on abortion into law. Senate Bill 8 bans abortion after 6 weeks, even in cases where pregnancy is the result of rape or incest. At 6 weeks, most people do not even realize they are pregnant. SB8 would thus make at least 85 percent of abortions performed in Texas illegal.

While the law is insidious, this blatant attack on reproductive rights follows a national movement against abortion over the past decade. States like Arkansas, Oklahoma, and South Carolina have passed legislation in recent years that are direct and indirect challenges to Roe v. Wade, the landmark 1973 US Supreme Court case that enshrined a federally protected right to an abortion.

After the confirmation of Amy Coney Barrett to the Supreme Court in 2020, many conservative state lawmakers have been keen to test the limits of what the new 6 - 3 anti-abortion majority will restrict, with the coordinated goal of eliminating abortion access nationwide. Consequently, 2021 has become the most restrictive year for abortion access since 1973, with 19 states enacting 97 restrictions on abortion since January alone, according to the Guttmacher Institute.

This political environment has produced the most restrictive abortion legislation in the country: Texas’ SB8. SB8 takes the unprecedented step of deputizing private citizens to sue anyone aiding another person in obtaining an abortion after six weeks. Texas’ state legislature has thus empowered private citizens to bring civil litigation, with a veritable bounty of least $10,000 in damages, against providers or practical support organizations who assist a patient in accessing an abortion. Anyone from the clinical staff to an Uber driver is a potential defendant. This enforcement mechanism purports to insulate the law from federal court intervention, since the state itself does not administer it. This legislation will purposely create burdensome legal fees and lawsuits for clinics, making it impossible for many to remain open and offer abortion access even before the six-week deadline. To reverse this policy, advocates have taken legal action to challenge the constitutionality of SB8.

As reproductive justice advocates, we know the stakes: the right to an abortion means the right to life-saving care.

A coalition of abortion providers, funds, clinic staff, practical support networks, and clergy helped file Whole Women’s Health v. Jackson in the U.S. District Court for the Western District of Texas. The plaintiffs were seeking immediate relief to halt the implementation of SB8 on September 1st. The case was appealed to the Supreme Court, which failed to act before the implementation date and remained silent for nearly 24 hours after the law went into effect. After the Court spent less than three days dealing with the case, the justices ruled 5 to 4 to leave the law in place, effectively handing abortion opponents a huge victory, though the Supreme Court left open the possibility of a later constitutional challenge.

Other conservative state legislatures are likely to follow suit in curbing abortion access, as SB8 serves as a playbook for how states can attempt to shirk federal intervention. A key impact of SB8 will be the increase in travel required for any Texan seeking abortion. Patients will have to deal with a small window of opportunity between confirming that they are pregnant and figuring out the logistical and financial details of accessing an abortion. Thus, there is a strong possibility that Nevada, which has much less restrictive abortion laws, absorbs some of these patients. It is therefore imperative for reproductive justice advocates to support practical support groups in Nevada and Texas that are helping people access abortion. Additionally, advocates must raise capital and popularize abortion care funds that are working toward making abortion, including the financial and logistical costs, feasible for low-income groups that will be disproportionately affected by this legislation.

For those wanting to join the fight in Nevada, Wild West Access Fund is a new abortion fund in the state. The fund is entirely run by unpaid volunteers who help facilitate funding and practical support resources for abortion seekers. For anyone looking to channel their rage, now is a great time to donate $10 to a local abortion fund.

As reproductive justice advocates, we know the stakes: the right to an abortion means the right to life-saving care. The right to an abortion means the right to bodily autonomy. The right to an abortion means the right to choose. We must do everything we can to ensure its survival.

LEARN MORE ABOUT WILD WEST ACCESS FUND