Last week, Georgia Gov. Brian Kemp signed a piece of anti-abortion legislation that left Texas, one of the pro-life movement's biggest hotbeds, in the dust. Thanks to Kemp's signature, Georgia law now bans any abortion occurring more than six weeks into a pregnancy, creating an almost impossible window for women seeking an abortion to get the procedure. The bill also declares fetuses older than six weeks people under Georgia law, so women who head out of state for an abortion could be subject to murder charges when they return to Georgia. Same goes for women who contribute to a miscarriage.
The Georgia law is one of a raft of extreme anti-abortion statutes passed this year by Republican-led legislatures around the country, many in an attempt to open the door to a U.S. Supreme Court challenge of Roe v. Wade and its successor, Planned Parenthood v. Casey.
Despite the national mood and a state Republican caucus that remains as steadfastly anti-abortion as ever, Texas' legislature, the same one that has repeatedly pushed the constitutional envelope with anti-choice legislation over the last decade, failed to advance its own heartbeat bill.
Unlike the last three legislative sessions, Texas Gov. Greg Abbott is not going to sign an anti-abortion bill that has a flashing target on its back in 2019. That doesn't mean the threat to women's rights in Texas is over or that the zealots in the Legislature have gone soft. Far from it. What's happened is that the legislature, and the Texas House specifically, have gone tactical this session, avoiding fights they know they're destined to lose.
"On the heartbeat bill, to be candid with you, there was a lot of discussion in the pro-life arena ... and it was not something that was the highest priority. It had support but not the highest priority, because it will eventually be decided in the Supreme Court," Texas Lt. Gov. Dan Patrick told Dallas' conservative radio host Mark Davis on Thursday morning.
Texas Alliance for Life, one of the state's biggest anti-abortion advocacy groups, actually came out against the bill. Passing HB 1500, according to the group, could actually strengthen abortion providers in Texas due to the attorneys' fees Texas could be forced to shell out if they are sued over the law.
The measure "bans abortions on non-viable abortions when the heartbeat is detected, which the Supreme Court does not permit," the group said in explaining its decision. "This law has been passed in three states and struck down in all three, Arkansas, North Dakota and Iowa. Requests by Arkansas and North Dakota to review the cases have been denied by the Supreme Court."
In their rulings, the judges who have struck down previous "heartbeat bills" have cited the standard created by Casey. Casey holds that states have an interest in regulating abortion, but they cannot create an "undue burden" on women seeking the procedure. The "undue burden" standard guided the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, the 2016 case that saw the high court overturn a Texas law that required doctors performing abortions to have admitting privileges at a hospital within 30 miles of the clinic at which they were performing the procedure and for abortion clinics themselves to be outfitted to the same standards as hospital surgical suites.
Despite the Texas law's being struck down, it still forced dozens of clinics in the state to shut down during the various times it was enforced as the suit against it wound its way through the courts. Fewer clinics means longer waits for appointments. Combine longer wait times with basic human anatomy, and Texas' heartbeat bill, while not imposing criminal penalties on women seeking abortions, would have made it basically impossible to get an abortion in Texas.
"A six-week ban is an abortion ban because most women don't know they're pregnant at six weeks," says Kelly Hart, the senior director of public affairs at Planned Parenthood of Greater Texas. "You miss your period, that's usually your first sign. Then how long do you wait before you get a test, because maybe you hope you're late for some reason? Maybe you give it a few days or whatever. You take the test, it comes back positive. You go to your doctor, maybe, to have it confirmed. There's a process."
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Even if a woman makes an appointment the day she realizes she might be pregnant and sees a doctor as soon as possible, she might not meet the law's requirements.
"If this law was in place and you immediately pick up the phone to call one of us, it's a matter of when we can fit you in. Then you have to come in for your (state-mandated) sonogram. It's rarely a two-day wait. It's usually more because of scheduling and all that. This is just another way to do an abortion ban," Hart says.
Drucilla Tigner, the ACLU of Texas' reproductive rights political strategist, chalks up the failure of the heartbeat bill, which picked up 57 co-authors in Texas' 150-member House of Representatives, to pragmatism.
"It's clear that House leadership wanted to (stall) the bill because they sent it to the Public Health Committee chaired by Representative (Senfronia) Thompson," Tigner says. "She has a known record for being a friendly legislator to women's rights in the state of Texas. It seems to me that it was placed there on purpose to not go anywhere. I think that it's a clear sign that anti-choice legislators in the state are getting the message that women will not stand for things like a total effective ban on abortion and that they will see the results of those choices at the ballot box."