The 2017 session of the Texas Legislature, like most recent sessions of the Texas Legislature, wasn't a good one for reproductive rights. While lawmakers rejected some of the most stringent anti-abortion legislation, including a blatantly unconstitutional bill from state Rep. Tony Tinderholt of Arlington that would've banned abortion statewide, Texas conservatives passed a slew of provisions that will likely see the state tied up in federal courts for years. Without significant changes in the makeup of the Texas House and Senate, pro-choice advocates predict the continued erosion of women's rights in the state.
The big piece of anti-abortion legislation signed into law by Texas Gov. Greg Abbott this year is Senate Bill 8, a compilation of several popular conservative proposals. The bill, which hasn't fully gone into effect because of two ongoing federal lawsuits, bans fetal tissue donation in the state; requires all tissue obtained during an abortion to be buried or cremated; and bans dilation and evacuation, the safest and most common procedure for second-trimester abortions, without exceptions for rape or incest.
SB 8 is the most important anti-abortion bill to come out of the Legislature since 2013, according to Lucy Stein, the advocacy director for Progress Texas. The ban on the dilation and evacuation procedure, she says, is especially pernicious. In 2016, the Supreme Court overturned two significant portions of the 2013 law — requirements that any doctor performing abortions in the state have admitting privileges at a hospital within 30 miles of the abortion clinic and that all abortion clinics be outfitted as surgical centers.
"You've had decades of abortion restrictions piling up in Texas, so the 2013 law, despite being struck down by the Supreme Court, closed half the state's abortion clinics." – Lucy Stein, Progress Texas
"When these laws are passed, they don't operate in a vacuum," Stein says. "You've had decades of abortion restrictions piling up in Texas, so the 2013 law, despite being struck down by the Supreme Court, closed half the state's abortion clinics. The clinics haven't all been able to reopen, so we're still operating with half the clinics that we had in 2014."
This has led to longer wait times for women seeking abortions — more than two weeks longer, according to research from the University of Texas' Texas Policy Evaluation Project. Waiting longer increases the likelihood that a woman will be in her second trimester as she seeks to terminate her pregnancy.
"You push more women into the second trimester, so then coming back this session and basically banning a law to ban second trimester abortion is no accident," Stein says. "It's by design. It's alarming."
The lead plaintiff in the legal fight over the 2013 law, Whole Woman's Health, is also fighting the dilation and evacuation ban. In November, U.S. District Judge Lee Yeakel ruled against the ban.
"The court concludes that requiring a woman to undergo an unwanted, risky, invasive, and experimental procedure in exchange for exercising her right to choose an abortion, substantially burdens that right," Yeakel wrote in the opinion.
After the ruling, Texas Attorney General Ken Paxton appealed the decision to the 5th U.S. Circuit Court of Appeals. Paxton is confident that the record from the trial in Yeakel's courtroom will sway the circuit court. The record includes detailed descriptions of dilation and evacuation abortion, which anti-abortion advocates call "dismemberment abortion."
“A five-day trial in district court allowed us to build a record like no other in exposing the truth about the barbaric practice of dismemberment abortions,” Paxton said. “No just society should tolerate the tearing of living human beings to pieces. We are hopeful the 5th Circuit will respect the will of the Texas Legislature by upholding Texas’ lawful authority to protect the dignity of innocent unborn children as they die.”
The final outcome of the case, whether it's decided at the 5th Circuit or Supreme Court, will determine whether states can ban on specific procedures to effectively limit the time frame in which a woman can obtain an abortion. Texas already has a ban on abortions after 20 weeks after conception. the ban would basically move that limit to 15 weeks because 80 percent of abortions performed after that time are done by dilation and evacuation.
The case could also become part of a new challenge to Roe v. Wade, which Stein says "is definitely a concern for advocates and women seeking care."
"[Banning abortion] is their endgame," Stein says of anti-abortion advocates. "They've been doing it incrementally, and it's definitely been picking up pace over the last few years, across the country.
Regardless of potential court decisions, Stein believes that slowing anti-abortion momentum in Texas requires electing new officeholders. Republicans in Austin, she says, are beholden to advocacy groups and primary electorates with extreme anti-abortion positions.
"In order to affect policy change on any number of issues, including reproductive rights, in Texas, we need dramatic electoral change," Stein says. "I think that's achievable, so I think that dramatic policy change on this front is also achievable. ... I'm optimistic, but it's sort of a long-term optimism."