The 2017 Texas Legislative session is already set to feature several high profile battles over abortion access, less than a week after filing for the 85th Legislature began. On the first day of filing, Monday, North Texas Republican state Senator Bob Hall fired the first shot in a battle that could end in abortion being banned in the state.
Thursday, Charles Schwertner, Hall's senate colleague, filed a bill that would declare something that is already illegal everywhere in the United States, so-called "partial-birth" abortion, illegal in the state of Texas. Schwertner's bill would also ban most fetal tissue donation in the state, despite the fact that Texas has not had an active fetal tissue donation program 2010. A bill filed in the Texas House by Representative Byron Cook would require that all fetal remains be buried or cremated.
Hall's proposal is pretty straightforward. He wants the legislature to propose a constitutional amendment that would ban any and all abortion in the state of Texas up to the level allowed by federal law. An election to ratify the proposed amendment would be held in November 2017. As things stand, the vote wouldn't change anything. Roe v. Wade and, more recently, Whole Women's Health v. Hellerstedt, remain the precedents for federal abortion law. States cannot pass any ban or restriction on abortion that places an undue burden on a woman who hopes to receive an abortion. Hall's amendment would come into play if a more conservative Supreme Court overturned Roe, leaving it up to the states to determine legality. If Hall's amendment has become part of the Texas Constitution when that happens, abortion would instantly become illegal across the state.
Schwertner's bill is more political. Senate Bill 8 purports that it would ban partial-birth abortion in the state of Texas, despite the fact that dilation and intact extraction, the procedure commonly described by anti-abortion advocates as partial-birth abortion, was banned at the federal level in 2003. Schwertner's bill would, however, set a precedent for the state to regulate abortion by type of procedure performed, something that could potentially allow for abortion restrictions that would limit abortions to those occurring in the first trimester. Texas Right to Life, one of the state's foremost pro-life legislative advocates, is pushing a ban on dilation and evacuation abortion, which it calls dismemberment abortion.
The ban on fetal tissue donation became a priority for Texas Republicans following the release of several videos from the Center for Medical Progress in 2015 purporting to show Planned Parenthood officials in multiple states, including Texas, agreeing to sell fetal tissue obtained in abortions. While the videos were found to be heavily doctored, Texas leaders like Lieutenant Governor Dan Patrick and Attorney General Ken Paxton vowed to stop the sale of baby parts in Texas, despite the fact that no Planned Parenthood in Texas has even participated in a fetal tissue donation program since 2010. SB 8 would prohibit them from ever doing so again.
“Nothing we do is more important than protecting innocent life. Texans count on us to do everything possible to make sure that the sanctity and dignity of life is protected," Patrick said of the bill Thursday. "In the wake of discovering the notorious Planned Parenthood videos last year, in which employees were caught callously discussing the procurement of aborted baby body parts, the Texas Senate is taking aggressive steps to criminalize these despicable acts."
If Cook's bill passes, that tissue, which can be incredibly valuable in disease research, would instead be buried or cremated. Abbott pushed the Texas Health and Human Services Commission to publish rules requiring fetal burial or cremation this summer, but those rules are unenforceable without legislative backing. Cook's bill would create that enforcement, and cause the cost of providing abortion to as much as quadruple, according to a Planned Parenthood analysis of a similar bill in Indiana.
"I believe that it is imperative to establish higher standards that reflect our respect for the sanctity of life," Abbott said in a July statement. "That is why Texas will require clinics or hospitals to bury or cremate all human remains."
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Stephanie Toti, the lead lawyer for the plaintiffs in Whole Women's Health v. Hellerstedt, said this summer that she was ready to sue the state again if a bill like Cook's was enforced.
"Texas politicians are at it again, inserting their personal beliefs into the health care decisions of Texas women,” Toti said. "The Center for Reproductive Rights is prepared to take further legal action to ensure that Texas women can continue to access abortion and other reproductive health care without interference by politicians."
Planned Parenthood of Greater Texas did not respond to a request for comment Thursday,
The Supreme Court struck down the heart of Texas' 2013 abortion restrictions this summer, but it's clear that decision was only the beginning for Texas' ongoing battle over abortion.