Texas Is Once Again Ground Zero for the Abortion Rights Fight

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Analysis Abortion

Texas Is Once Again Ground Zero for the Abortion Rights Fight

Mary Tuma

A flurry of prefiled bills offer a glimpse into the anti-choice strategy in Texas for 2021.

While the nation’s pro-choice advocates breathe a sigh of relief over President-elect Joe Biden’s recent election victory, Texans aren’t afforded much of a reprieve. With the GOP-dominated Texas Legislature slated to gavel in this January, pro-abortion citizens and advocates are bracing for another session marked by Republican anti-choice extremism. As Trump makes his way out of the White House, he leaves behind a newly reconfigured—and more intensely right-wing—Supreme Court, emboldening local anti-choice activists who see a clearer path to banning abortion.

The Texas Legislature, which convenes once every two years for a 140-day session, is notorious for passing some of the most draconian abortion laws in the United States. Since 2003, the legislature has chipped away at abortion rights with a flurry of onerous restrictions, including a burdensome 24-hour waiting period and mandatory sonogram rule; a 20-week abortion ban; a prohibition on abortion care as part of comprehensive health insurance; heightened restrictions for minors seeking judicial bypass; state-mandated medical misinformation for abortion patients; and a dilation and evacuation (D&E) abortion ban that’s in litigation and not in effect.

House Bill 2—later struck down by the U.S. Supreme Court in the historic Whole Woman’s Health v. Hellerstedt ruling in 2016—sought to require clinics to unnecessarily transform into ambulatory surgical centers and force doctors to obtain hospital admitting privileges. The legislation forced roughly half of the abortion clinics in Texas to shutter and severely increased barriers to access, an impact that’s still felt today, particularly by low-income women and women of color.

In 2019, lawmakers passed a bill that bars local government from partnering with an abortion provider or affiliate, placing vital preventive health care and community health education at risk. Despite a dire maternal mortality crisis and the highest rate of uninsured residents in the United States, the Texas Legislature did little to address or remedy these pressing issues.

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As each session approaches, Republicans don’t waste any time attempting to ban abortion care. And with the 87th session, they appear to be increasingly zealous: On November 9, the first day of bill prefiling, Rep. Steve Toth proposed shortening the state’s 20-week abortion ban to 12 weeks (HB 69), with an exception only for when the pregnant person is at risk of death or serious bodily harm. Rep. Drew Springer filed what’s known as a “trigger ban,” (HB 279)—prohibiting abortion in the event Roe v. Wade is overturned by the Supreme Court, with a similar limited exception for a pregnant person’s life or serious physical risk. And Rep. Valoree Swanson filed HB 42, which would ensure that any pregnant person who refuses abortion care in the event of an unviable fetus or fetal abnormality would not be kicked off her insurance plan.

It’s only been a week since the start of bill prefiling, and lawmakers, who will meet at the Capitol on January 12, have four months to file additional anti-choice bills—and no doubt they will. An aggressive strategy from the state’s influential anti-abortion group, Texas Right to Life (TRL), is in the works, the organization’s legislative director John Seago told Rewire News Group.

TRL is coordinating with Republican lawmakers to introduce an “Abortion Abolition” omnibus bill that seeks to ban abortion sought for reasons of sex, race, or diagnosis of fetal anomaly—what the anti-choice group calls abortion “discrimination”—and removes an exception to the state’s 20-week ban for severe fetal disability. It will also include a near-total ban on abortion at six weeks, as well as a full abortion ban with a narrow exception. In 2019, a Texas six-week ban—misleadingly called a “heartbeat” bill—netted a stunning 60 co-sponsors yet died in committee, while an abortion “discrimination” bill—which also sought to remove an exception to the state’s 20-week ban for severe fetal disability—did not become law.

However, the current political climate makes the passage of these proposals more likely, according to Seago’s group. Fearing it would backfire at the Supreme Court, anti-choice advocates in Texas have in the past opted not to prioritize a six-week or full abortion ban, But with a new bench that includes anti-choice Justices Brett Kavanaugh and Amy Coney Barrett, they feel more emboldened now. Within 24 hours of Justice Ruth Bader Ginsburg’s death, GOP Rep. Briscoe Cain tweeted, “Sounds like it’s a great time for the #txlege to pass the Texas #HeartBeatBill.” Stressing their priorities well ahead of the first day of the legislative session, the Texas Senate State Affairs Committee plan to meet in early December to “study and recommend ways Texas can further protect the lives of the unborn, including fetal heartbeat legislation.”

Adding to the encouragement is an election night in Texas that heavily favored Republicans. While Democrats eagerly hoped to win control of the state house by flipping nine seats, the party lost the opportunity to banish right-wing abortion legislation. Anti-choice Republican lawmakers—like Rep. Tony Tinderholt, who proposed a bill in 2019 that would have forced abortion patients to face the death penalty—held their seats in the face of Democratic challengers. And on the Congressional level, former state Sen. Wendy Davis, who famously filibustered for 13 hours to defeat an omnibus anti-choice bill in 2013, failed to unseat ardent anti-choice Republican U.S. Rep. Chip Roy.

“This session we have the best opportunity to pass bold pro-life laws that substantially change the battlefield for the pro-life movement,” Seago said. “Considering the Supreme Court makeup and local pro-life election night wins, we are feeling very optimistic about the potential to pass stronger legislation.”

In light of the Whole Woman’s ruling, the Texas anti-choice strategy this session will shift its focus away from bills that regulate abortion clinics into oblivion (like TRAP laws) and profess to protect the “health and safety” of women, Seago said. Rather, the priority will be on bills that directly ban abortion and raise the question of the state’s interest in protecting what Seago called “preborn life.” These direct bans are the “types of bills that need to be passed to raise the right legal questions for the Fifth Circuit Court of Appeals and eventually SCOTUS,” he said. Seago also pointed to Chief Justice John Roberts’ concurring opinion in June Medical Services v. Russo as a means to help pave the way for courts to clear abortion restrictions.

“Texas has the capacity to push the decisions, we’re not going to wait until Roe is overturned to bring up cases to start chipping away at the legal foundation,” he said.

Anti-choice advocates are watching to see if and when the Supreme Court will take up Mississippi’s 15-week abortion ban. Locally, they’re anticipating the Fifth Circuit Court of Appeals en banc review this January of Texas’ D&E abortion ban, which would bar the safest and most common type of second-trimester abortion procedure. In October, a three-judge panel struck down the 2017 Texas law as unconstitutional, noting that it would subject patients to “painful, invasive, and experimental” medical procedures.

Meanwhile, pro-choice advocates—who often find themselves on the defense in Texas—understand it will be an uphill battle.

“Whatever safety net we had at the Supreme Court is now gone,” NARAL Pro-Choice Texas’ executive director Aimee Arrambide said. “And with no gains during the election in terms of abortion access champions in the legislature, we know it’s not going to be easy this session. The bills already filed so far show that extremists want to go after abortion immediately.”

Arrambide remains hopeful and pointed to proactive legislation she expects to see filed, including bills that repeal abortion restrictions and address the terrorism faced by clinic workers and patients. Legislation that bars the “tampon tax,” efforts to expand Medicaid, and a proposal to create a task force on maternal mortality are already prefiled. Arrambide said due to her group’s “Let’s Talk About Abortion” training, pro-choice legislators are more equipped to support abortion “vocally and unapologetically,” on the house and senate floor. She also noted that Texas pro-choice advocates have successfully fended off a handful of extremist laws in court including a fetal burial rule, a D&E ban (so far), and, of course, HB 2.

“Texas is often a testing ground for anti-abortion bills, and what happens here plays into the national conversation. Two historic Supreme Court abortion cases have come from Texas—I wouldn’t be surprised if there were more,” Arrambide said. “But I also think people can look to us to see how we’ve beat some of these restrictions for the past decade. We’re resilient and creative in the ways we fight back, and I hope that’s part of the national conversation, too.”

UPDATE: The Texas Senate State Affairs Committee rescheduled its meeting from November 18 to early December.