Senate Bill 8, the anti-abortion law sent to Texas Gov. Greg Abbott's desk by the Texas Legislature late Friday afternoon, is a bunch of things rolled into one. It's a ban on fetal tissue donation. It requires all tissue obtained during an abortion to be buried or cremated, and it bans dilation and evacuation, the safest and most common procedure for performing second-trimester abortions — without exceptions for rape or incest.
Taken together, SB 8 is the most stringent and most important anti-abortion bill to come out of the legislature since 2013. That year, then-Gov. Rick Perry called a special session to make sure the bill passed. The Supreme Court struck down major sections of that bill — including requirements that all doctors 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.
The court left intact the state's ban on abortions happening more than 20 weeks into pregnancy, opening the door for the legal strategy behind SB 8.
“The component of House Bill 2 that we were most interested in, the top priority, was the preborn pain section that prohibited elective abortions after 20 weeks,” Texas Right to Life legislative director John Seago told the Observer last year.
That provision, pro-life activists contend, establishes that Texas has a state interest in protecting fetuses from pain, something that previously had not been a part of Texas law. That interest, activists say, is what allows Texas to regulate the types of abortion procedures that are legal and illegal within the state.
"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," state Sen. Charles Perry, author of another bill that would've banned dilation and evacuation abortion, said in January. "We know that children in the womb are capable of feeling pain. Prohibiting this practice is long overdue."
A comprehensive report published by the UK Royal College of Obstetricians and Gynaecologists in 2010 says that the earliest a fetus might be able to feel pain is 24 weeks into a pregnancy, a finding echoed by most medical literature on the subject.
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Whatever the reasoning behind the bill, another legal fight is brewing. If Abbott does as expected and signs SB 8, the Center for Reproductive Rights, the legal group that spearheaded the successful challenge to HB 2, vowed to drag the state back into court.
“From banning a safe method of abortion to doubling down on regulations already blocked by a federal court, Texas politicians continue their crusade against a woman’s right to safe and legal abortion,” Amanda Allen, senior state legislative counsel at the Center for Reproductive Rights, said in a Friday statement. "The Center for Reproductive Rights vows to battle any unconstitutional measures in the courts until the rights of Texas women are respected and protected.”
Texas' is the eighth state legislature to vote to ban dilation and evacuation abortion, but similar laws in Louisiana, Kansas and Oklahoma have been pre-empted by legal challenges before they've taken effect. A Texas U.S. district court found the requirement to bury fetal remains unconstitutional earlier this year in response a proposed state regulation.