If you want a preview of the road President Donald Trump intends to take when it comes to reproductive freedom at the federal level, don't look any further than Texas. Republicans here have already proudly taken the path the president outlined during Tuesday night's State of the Union address, leading to calamitous effects for women seeking an abortion provider in the state.
During his speech, Trump called for an end to "late-term abortion" — a non-medical term — before giving away his hand about what he was really trying to do.
“To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb,” Trump said.
The prohibition of fetal pain is the same purported goal that Texas anti-abortion activists used in their pursuit of a 20-week abortion ban in Texas in 2013. In the short term, it creates a shorter window in which women can legally pursue an abortion. Long term, establishing that the state — or the federal government in this case — has an interest in limiting pain for fetuses opens the door to the abolition of legal abortion.
According to pro-life advocates like Texas Right to Life's John Seago, who previewed his side's tactics to the Observer in 2016, once fetal pain is something the state can regulate, the state can then begin regulating specific abortion procedures, as Texas did in 2017 when the Legislature banned — in a law that's the subject of an ongoing lawsuit — dilation and evacuation, the most common, and safest, form of abortion for women in the second trimesters of pregnancy. (Dilation and evacuation bans have been proposed, but not passed, multiple times at the federal level.)
It's a pincer movement. Other laws, like those that create tougher requirements for where abortions can be performed, who can perform them and what credentials they must have — like the Louisiana law recently put on hold by the Supreme Court that would require all abortion providers in the state to have admitting privileges at a hospital within 30 miles of wherever they perform an abortion — cause clinic closures, force women to travel longer distances in order to get an abortion and lengthen the wait time for appointments at abortion clinics.
The more difficult it is for a woman to get and keep an abortion appointment, the likelier that her pregnancy will slip into the second trimester before she can make her ultimate decision.
"You push more women into the second trimester, so then coming back ... and basically passing a law to ban second-trimester abortion is no accident," Lucy Stein, then the advocacy director of Progress Texas, told the Observer about the Texas laws a little more than a year ago. "It's by design. It's alarming."
Block by block, conservative state legislatures and an increasingly conservative federal judiciary are laying the groundwork for not only the abolition of Roe vs. Wade, something that could happen as soon as the Supreme Court hears the Louisiana case in full, but federally limited abortion in states where the procedure was legal before Roe and would remain so even if it is repealed.
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