Inside the Legal Strategy Behind Texas' Newly Filed Anti-Abortion Bill

The measure members of the Texas anti-abortion lobby are calling "the most important pro-life bill of the session" is officially on the books ahead of the 2017 Texas Legislative session. Late last week, state Representative Stephanie Klick and state Senator Charles Perry officially filed the Texas Right to Life-designed ban on dilation and evacuation abortion. If the bill becomes law, second trimester abortion in Texas could become a thing of the past.

The bill targets a procedure anti-abortion advocates describe as dismemberment abortion, one that happens to be the most common one used in second trimester abortions. Beginning with the 13th week of pregnancy, a majority of abortions performed in the state of Texas are dilation and evacuation procedures. For those procedures which occur after the 15th week, the number is nearly 80 percent.

Perry said Thursday that his bill is about stopping fetal pain. "Each year in Texas, more than a thousand lives are ended by dismemberment abortions. As a society we should not allow a practice that literally pulls a living child apart in the womb," Perry said. "We know that children in the womb are capable of feeling pain. Prohibiting this practice is long overdue."

Four years ago, proponents of House Bill 2, the sprawling anti-abortion measure that was eventually mostly struck down by the United States Supreme Court last summer, cited fetal pain as the basis for the single provision of the bill that survived the SCOTUS ax. That provision is a ban on all abortions performed more than 20 weeks after gestation.

Most medical literature on the subject, including a comprehensive report published by the UK Royal College of Obstetricians and Gynaecologists in 2010, says that earliest a fetus might be able to feel pain is 24 weeks into a pregnancy.

Still, Perry and Texas Right to Life, one of Texas' biggest anti-abortion lobbyists, latched onto the survival of the 20 week ban as a template for a larger challenge to abortion."The Dismemberment Abortion Ban is the only pro-life measure filed that will actually stop abortion and protect pregnant women, and their children," said Elizabeth Graham, director of Texas Right to Life. "Other bills offer life-affirming nuances, but SB 415 and the companion, HB 844, directly save lives while addressing the criminal activity of the abortion industry documented over the last two years."

D&E is used by abortion providers when aspiration, which is the most common abortion procedure in the first trimester, is no longer a viable method. Fetal tissue is dissected in the uterus and then removed in pieces, hence the dismemberment label.

If the bill passes, it will inevitably be challenged in court by Texas abortion providers. If that happens, Texas Right to Life Legislative Director John Seago says, there is a good chance the Supreme Court would uphold the law, based on the earlier opinions of swing vote Anthony Kennedy. In Gonzalez vs. Carhart, which banned dilation and intact extraction abortions, Kennedy wrote that the states could ban “gruesome and inhumane” abortion procedures.