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 6 weeks to be 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 — notably, Alabama has passed a total ban on abortion, albeit one without criminal consequences for the woman seeking one — 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, the Texas Legislature, which has repeatedly pushed the constitutional envelope with anti-choice legislation over the last decade, failed to advance its own fetal heartbeat bill, outlawing abortions when a fetus' heartbeat can be detected.
Unlike the last three legislative sessions, Texas Gov. Greg Abbott in 2019 is not going to sign an anti-abortion bill that has a flashing target on its back. That doesn't mean the threat to women's rights in Texas is over or that the fervent abortion opponents in the Legislature have gone soft.
Whether it’s because they are snake-bit from previous electoral and court losses, can’t agree among themselves about the appropriate consequences for getting an abortion or are simply willing to sit back and let things play out at the national level, Texas pro-lifers have gone tactical this session, picking their shots rather than going for the biggest legislative win possible.
"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 recently.
Texas Alliance for Life, one of the state's biggest anti-abortion advocacy groups, came out against the bill. The measure "bans abortions on non-viable (fetuses) 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."
Passing the law, according to the group, could actually strengthen abortion providers in Texas because of the attorneys' fees Texas could be forced to shell out to its opponents if the state is sued over the law and loses.
Texas Wins Some, Loses Some
In their rulings, the judges who have struck down previous "heartbeat bills" have cited the standard created by the Supreme Court in its decision in 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. The law also would have required abortion clinics to be outfitted to the same standards as hospital surgical suites.
Although Texas’ law was struck down, it still forced dozens of clinics in the state to close during the time 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 getting an abortion in Texas essentially impossible.
"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."
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.
In addition to not wanting to pay for pro-abortion rights supporters’ next lawsuit with their attorney’s fees, Texas Alliance for Life fears the effect of negative precedent on future abortion laws in Texas and around the United States. In the eyes of the group’s special counsel Paul Benjamin Linton, Supreme Court Chief Justice John Roberts isn’t a sure vote to overturn Roe, the Supreme Court decision that legalized abortion nationwide in 1973.
“The chief justice’s opinion upholding the Affordable Care Act gives one pause, as does his (in my view) exaggerated respect for precedent (which, to some extent, may be shared by Justice Brett Kavanaugh),” Linton wrote last year. “Although the chief justice might be willing to join an opinion overruling Roe at some point, it is doubtful he would cast the decisive (fifth) vote, particularly in the absence of further erosion of Roe. In other words, if his vote were needed, it is unlikely that it would be obtained.”
Until Roe v. Wade is overturned, the group would rather ask the Supreme Court questions it hasn’t already answered in an effort to chip away at the foundations of the law.
“Ignoring the Supreme Court is not a realistic possibility and would have no benefit. Regardless of whether the Legislature or the attorney general ignores the Supreme Court (which they will not do), all abortion laws must be enforced and prosecuted by local district attorneys and county prosecutors,” Texas Alliance for Life says in its 2019 legislative guide. “All DAs and prosecutors have taken an oath of office to uphold the Constitution, as interpreted by the Supreme Court. They will not enforce any law when prohibited by the Supreme Court.”
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 another reason: politics.
"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."
Extreme Bills Go Nowhere
Similarly extreme anti-abortion proposals have found similar fates at the Legislature this year. Arlington state Rep. Tony Tinderholt’s total ban and criminalization of abortion, for example, failed to receive a committee vote, sparking one of the biggest internecine fights of the session.
Plano’s Rep. Jeff Leach, an anti-abortion stalwart and chair of the House Committee on Judiciary and Civil Jurisprudence, decided to leave Tinderholt’s bill pending because he believed, as many anti-abortion advocates believed about the heartbeat bill, that Tinderholt’s would set back the movement.
“I have always been on the front lines in the fight for the sanctity of life, both personally — through my active involvement in the pregnancy resource centers and pro-life ministries — and as an elected official, where I have authored and supported some of the nation’s strongest pro-life laws,” Leach said in a statement explaining his decision. “My commitment to advancing the pro-life cause is stronger than ever, and that’s why I cannot in good conscience support House Bill 896 — legislation that subjects women who undergo abortions to criminal liability and even the possibility of the death penalty. Trusted pro-life legislators and advocates agree with me that this bill moves our state and the pro-life cause in the wrong direction and it will not be advanced from the House Committee on Judiciary and Civil Jurisprudence.”
Leach immediately took heat from Tinderholt and other pro-life maximalists, who viewed as a betrayal his decision to stall the bill in his committee despite hours of emotional testimony.
"Some think we should exempt mothers, but that would inherently treat unborn children differently than other people who are murdered," Tinderholt said in a statement.
In his bill, Tinderholt made the mistake of putting something on paper many pro-lifers might believe in their hearts but don’t say in public for fear of being viewed as extremists: If abortion is murder, it should be treated like murder, an idea that violates a long-standing principle of the anti-abortion establishment.
“Women were never prosecuted for abortion in Texas or in any other state before Roe. It is not right to start now. We need to focus on stopping abortion doctors and promoting compassionate alternatives to abortion, not on putting women in prison cells,” Joe Pojman, Texas Alliance for Life’s executive director, said after the committee hearing of Tinderholt’s bill.
Similarly to HB 896, Texas anti-abortion factions found themselves at odds over Texas Senate Bill 1033, which would end an exception to the state’s 20-week abortion ban for severe fetal abnormalities. Pojman and company came out against the bill, which is currently stalled in the Texas House, on the grounds that the Supreme Court has repeatedly upheld the right of women to abort fetuses that aren’t viable. Texas Right to Life, the state’s other anti-abortion lobbying giant, pushed strongly for the bill, because, in the eyes of its legislative director, John Seago, it would force the Supreme Court to answer a question about a state’s potential interest in protecting a specific class of fetuses.
“A lot of these bills that just prohibit abortion, they don’t present a state interest. It’s just kind of a head-butt,” Seago told the Texas Tribune earlier this year. “It’s not really built to ask the right questions to the Supreme Court. It’s just saying Roe is wrong.”
Seago’s push to establish a new, legally recognized state interest in limiting abortion is nothing new. Texas’ 20-week ban on abortion, the only piece of the state’s 2013 anti-abortion law to survive the 2016 Supreme Court decision, was important not just because it limited abortion, but because it established a state interest in limiting fetal pain. Four years later, the Legislature relied on that newfound state interest to justify banning dilation and evacuation abortions, the most common type performed in the second trimester of pregnancy.
Lawmakers Still Pass Anti-Choice Laws
While strict abortion prohibitionists have found themselves on the margins of the 86th Texas Legislature, calling 2019 a good year for abortion rights in the state isn’t quite right either.
With about a week left in the session, both chambers of the Legislature have passed several significant anti-choice bills.
Once Abbott signs it, House Bill 16, written by Leach himself, will turn a fake problem into a real law. Leach's "Born Alive Protection Act" creates civil and criminal penalties for doctors who fail to care for babies born after attempted abortions.
The proposed law is an attempt to appease President Donald Trump and others like him, who have recently begun telling anyone who’ll listen that doctors across the U.S. are killing otherwise viable babies during late-term abortions as a matter of routine. No such thing is happening, but that hasn’t stopped Abbott and Patrick from singling out the “born-alive” act as a priority.
According to the Texas Department of State Health Services, no live births following abortion were reported in Texas from 2013 to 2016, the last year for which complete records are available. If such a birth were to occur — an event that is especially unlikely, given that Texas already bans abortions from being performed more than 20 weeks after conception, in most cases — state and federal laws both provide protections for the person being born.
Speaking on the House floor earlier in April, Leach acknowledged the redundancy of his bill but said he intended to make sure doctors who violated the laws faced punishment. House Bill 16 would create a minimum fine of $100,000 for doctors who fail to care for a baby that survives an abortion. Any doctor who showed "gross negligence" in his or her failure to care for the infant could face third-degree felony charges if the bill becomes law.
"I don't believe (current law) goes far enough, so House Bill 16 seeks to clarify and provide teeth and enforcement mechanisms to ensure that a Texas baby that is born alive after an abortion receives the highest standards of medical care from that physician," Leach said.
Rep. Donna Howard, a Democrat from Austin, was the only House member to debate Leach on the bill. She said it wasn't worth the chamber's time and asked those House members who opposed the bill to mark themselves as present, rather than voting against it. The final vote count was 93-1, with 50 members present.
"The aim of HB 16 is clear — further stigmatize abortion, misinform the public, intimidate physicians and interfere with a woman’s ability to seek medical care," Howard said. "We refuse to waste limited time we have here by entertaining malicious and purely political attacks against women and doctors."
While Leach’s bill is about politics more than policy, another proposed law, Senate Bill 22, could have a much larger effect on women’s health. SB 22 bans any municipality in Texas from partnering with an organization providing abortions for any purpose. Under the law, cities will no longer be able to contribute money to Planned Parenthood in support of women’s health, for example, and rental agreements, like the $1-per-year lease a Planned Parenthood health center in Austin has with the city, would be impermissible, despite the fact that no abortions are performed at the clinic.
According to The American College of Obstetricians and Gynecologists, SB 22 will limit options for doctors and patients throughout Texas.
“Many communities have long-standing agreements with nonprofits that would be nullified if this bill goes into law,” the group said in announcing its opposition to the bill. “Many of the clinics, hospitals and providers that would be affected by this legislation serve low-income women and women in rural or isolated communities. Prohibiting these kinds of agreements will result in less women served, which in turn causes a negative fiscal impact on the state.”
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The “born-alive act” and SB 22 are real threats to the physical autonomy of Texas women. They may not induce the same visions of a Handmaid’s Tale-like future as legislation such as the Georgia heartbeat bill or the Alabama abortion ban, but they continue the erosion of women’s rights that’s been going on in Austin for decades.
“It’s more of a death by a thousand cuts scenario than it is this ‘let’s have a big political bill that we push through,’” Tigner says. “I don’t think it’s that they are respecting women and that they’re now no longer going to push anti-choice legislation, they’re just changing up their tactics on how they get it forward.”
Even allowing a committee hearing on a bill like Tinderholt’s, Tigner says, emboldens the most extreme elements of the anti-choice movement.
“(By) allowing their extreme supporters to come into the Legislature, like with HB 896, Representative Tinderholt’s bill, to feel like they’re being heard when, in reality, those individuals believe that women should be exposed to the death penalty,” Tigner says. “It’s not that this session of the Legislature is less extreme. It’s that they are trying to hide the extremeness of their policies by not putting it at the forefront that we’ve seen in the past.”