This is the first in a three-part series; come back next week for part two. For more Texas SB 8 coverage, check out our special report.
“Texas could become a hub for the abortion industry.”
That was the dire pronouncement of Texas’ top anti-abortion lobbyist in 1992 as the U.S. Supreme Court issued its ruling in Planned Parenthood v. Casey. In Casey, the Court had reiterated the basic premise of Roe v. Wade—that abortion prior to fetal viability is a constitutional right—sending Bill Price, then director of Texans United for Life, into a froth. He told the Fort Worth Star-Telegram he feared the state would become an “island” of abortion access in the South thanks to pro-choice leadership from Gov. Ann Richards and Lt. Gov. Bob Bullock, Democrats who had promised to block abortion restrictions following the Casey decision.
Thirty years later, Texas is home to the nation’s most oppressive abortion restrictions, including an unprecedented six-week abortion ban, SB 8, that allows private citizens anywhere to sue abortion providers—and anyone else who “aids or abets” an abortion after six weeks’ gestation—for at least $10,000. Whatever might constitute a “hub for the abortion industry,” Texas is certainly not it. So what the hell happened? How did Texas go from being the anti-abortion lobby’s worst nightmare to its greatest success story?
Roe is gone. The chaos is just beginning.
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After all, Texas is the home of Roe v. Wade, the landmark abortion case that legalized abortion nationwide in 1973. But as we soon mark six months since SB 8 effectively banned almost all abortions in the state, Texas is a leader not in abortion rights but in abortion repression.
How did we get here? I dug back through nearly 50 years of Texas legislative history to uncover more of the story, which I’ll recount in a three-part series.
There is a popular narrative—parts of which even I’ve subscribed to over my years spent covering abortion restrictions—that casts Texas as a hopeless case, a nerve center for anti-abortion extremism, the kind of place where a ban like SB 8 was simply an inevitability; a low-voting state where apathetic lefties let rabid right-wingers steal the show (and the vote), or, less charitably, a state where ignorant rednecks run roughshod over spineless Democrats year after year.
The truth is more complicated. Far from being universally spineless or apathetic, Democrats—even nominally “pro-choice” Democrats—have historically played significant roles in passing some of the earliest abortion restrictions in Texas, and their Republican counterparts were not always as confident or extreme as those who are currently in office. Perhaps most importantly, Texas was not always the abortion desert it is today. It was not until 30 years after Roe that Texas lawmakers began in earnest to successfully block access to abortion care.
The 2003 “Woman’s Right to Know” Act—which instituted a 24-hour waiting period, forced doctors to lie to their patients about the risks of pregnancy termination, and required providers who perform abortions after 16 weeks’ gestation to do so in licensed hospitals or ambulatory surgical centers—kicked off two decades of restrictions on providers and people seeking care.
Folks might be forgiven for thinking it has always been this way; the framework of relentless Republicans, hell-bent on outlawing abortion by any means necessary, steamrolling a handful of scrappy, pro-choice Texas Democrats certainly makes for a compelling, if revisionist, political fundraising pitch on either side, but the reality is much messier.
Texas was a “blue” state, or at least a state where Republicans had to put up a pretty good fight to secure a modicum of power, until the late 1990s. Democrats played instrumental roles in both blocking abortion restrictions in the first decades after Roe and instituting the first restrictions that did pass in the ’70s, ’80s, and ’90s. During those years, Republicans and anti-choice activists, as well as a healthy cadre of Democrats, publicly expressed fear and reservation about pushing too hard to roll back abortion rights and access.
Among all but a handful of Texas lawmakers who held strong beliefs either way, abortion in the first couple of decades after Roe mostly seemed to be an issue many felt was too hot or too messy to touch. Too hot and too messy, that is, until the Supreme Court—stacked with Reagan-appointed justices—opened the door to state-level abortion restrictions in a case out of Missouri called Webster v. Reproductive Health Services.
The first 25 years after Roe v. Wade
“When you have a ruling like [Webster v. Reproductive Health Services], what that does is bring on an onslaught of legislation on both sides. It gets folks fighting back and forth on the issue. What will happen in the next session, you’ll probably have 25 or 30 bills on both sides of the issue—people trying to impose restrictions and people trying to limit restrictions.”
That’s Texas House Speaker Gib Lewis, a Democrat who sometimes backed anti-abortion legislation, talking to the Fort Worth Star-Telegram following the Supreme Court’s 1989 ruling in Webster, the Missouri case that laid the groundwork for many of the state-level abortion restrictions in effect across the country today. (The Court held that Missouri’s bans on using public resources, facilities, and staff to provide abortion counseling and services were allowed under Roe’s right-to-privacy framework, as well as constitutional on their own.) Unlike right-to-lifer Bill Price’s assertion that Texas would become an abortion hub—which never came to pass—Lewis’ prediction was half-right. There was an increase in proposed abortion bills in Texas after Webster, but not from “both sides.” Not even a little bit.
Until Webster, Texas had passed just three abortion regulations: a “conscience”-type law protecting people who refused to provide abortion care, a law establishing reporting requirements to track the provision of abortion care in the state, and a ban on abortions after fetal viability. Of the five lawmakers who authored or sponsored those bills, just one was a Republican—the rest were anti-abortion Democrats. (All were men.) These regulations were just about all state lawmakers could do before the Webster ruling. But that’s not to say they didn’t try.
Between 1973 and 1989, Texas lawmakers proposed 91 laws relating to abortion, just three of which centered on improving abortion access. (One proposal, which looked neutral on its face but was anything but, would have put the question of legalized abortion directly to Texas voters in a statewide referendum. At the time, abortion rights leaders and abortion opponents alike told reporters the issue was too complex and nuanced, and that the referendum would be too costly—financially and politically—for either side to support.)
The first two post-Roe abortion bills in Texas came from one of the most famous faces of the abortion rights movement: Sarah Weddington, the attorney who argued and won Roe at the Supreme Court and who was serving in the Texas House of Representatives on January 22, 1973—the day Roe was decided.
The Texas Legislature happened to be in session in 1973 when Weddington filed two emergency bills: One sought to repeal sections of the Texas Penal Code that criminalized abortion, and the other affirmed the right to abortion by establishing a woman’s ability to consent to, and a doctor’s ability to provide, abortion care without punishment. Neither bill received a public hearing.
It would be 16 years before another Texas lawmaker put forth legislation in support of abortion rights or access: Houston Democrat Al Edwards, a civil rights activist who in 1989, on the heels of Webster, introduced a bill “expressing legislative sentiment against further restrictions on abortion.” That bill didn’t get a public hearing either. And even that came at a price: A decade earlier, Edwards had won support for his proposal to mark Juneteenth as a Texas state holiday by casting a vote for a political opponent’s anti-abortion bill. If the Texas Legislature has any tradition at all, it is one of pitting politically disenfranchised people against each other in their bids for rights and recognition.
Most of the more than seven dozen other abortion-related bills proposed in Texas in the ’70s, ’80s, and early-to-mid ’90s would look depressingly familiar to people who follow abortion politics today. Many had to do with restricting access to abortion for politically disenfranchised people. Some of the bills restricted young people’s access to abortion—in reaction to the Supreme Court case Bellotti v. Baird, which held that teenagers did not have to obtain parental consent to get an abortion. Others were designed to limit or ban the use of taxpayer funds for abortion, or to block public hospitals and health-care providers from providing abortion care.
Such efforts centered on putting abortion out of reach for low-income people and disproportionately blocked women and people of color from accessing care. (This isn’t by accident: Henry Hyde, the namesake of the racist, sexist, and classist 1976 Hyde Amendment, expressly said at the time that while he’d like to ban abortion entirely, he would settle for banning abortion for poor women through similar measures.)
Other proposed legislation sought to ban the sale or use of fetal tissue for research or medical purposes, and still others used as their premise many widely discredited “born-alive” myths to create criminal and civil penalties for abortion providers. Some lawmakers tried to ban particular medical procedures or introduced racist, misogynist “sex-selective” abortion bans, and others tried to regulate how abortion providers handled fetal remains and the products of conception. “Informed consent” bills came up repeatedly, including those that would institute mandatory waiting periods or require doctors to provide specific information (more accurately misinformation and outright lies) to people seeking abortion care.
In the ’70s, ’80s, and early ’90s, anti-abortion lawmakers trudged back to the Texas Capitol again and again, proposing the same anti-abortion legislation over and over—making the very same claims and demands that would become national news and perpetual cable-TV fodder in the 2000s and the 2010s, but getting almost nowhere.
While early anti-abortion lawmakers laid the rhetorical and political groundwork for future anti-abortion battles, very few of their proposals went farther than public committee hearings. This was in part due to Texas’ uniquely situated legislative apparatus, which allows the lieutenant governor to essentially stall or kill any legislation they don’t like.
Democratic lieutenant governors did just that, blocking most abortion restrictions for decades, though not necessarily because they were bold pro-choicers. In 1981, Texas Monthly noted that Lt. Gov. Bill Hobby often blocked abortion bills in the Texas Senate to “protect legislators from having to cast politically damaging votes,” holding off all but three new abortion restrictions for nearly 20 years.
The next man in the job, Bob Bullock, kicked off his tenure sticking to promises he’d made alongside Gov. Ann Richards to block new abortion restrictions. But Bullock quickly relented. In 1995, just three years after Casey, he publicly supported restricting young people’s access to abortion by requiring parental notification for care—efforts anti-abortion lawmakers had been pursuing since the early ’80s. Those restrictions failed to pass during Bullock’s tenure, though new abortion-reporting requirements and penalties for providers who violated them passed on his watch in 1997. (Those requirements were authored in part by Democrat Leticia Van de Putte, who would go on to become one of the heroes of the 2013 abortion rights filibuster and a champion for abortion access more broadly.)
With Bullock reneging on his no-new-restrictions pledge, Texans saw a marked change in abortion politics in the mid-to-late ’90s, legislatively speaking. From then on, the number of anti-abortion proposals introduced in the Texas Legislature numbered in the double digits most session years, with ever more co-sponsors and co-authors willing and excited to put their names on each bill.
In fact, from 1973 onward, every Texas legislative session has seen more proposed abortion restrictions than efforts to expand or protect abortion rights and access, often by several orders of magnitude. Partisanship didn’t meaningfully enter the conversation until the late ’90s, and even then, Democrats remained willing to support abortion restrictions, especially those they perceived as having little impact on—or even as politically beneficial to—their careers.
Laying the groundwork for restrictions
And we do have to talk about “impact,” especially on marginalized and politically disenfranchised Texans.
Throughout coverage of anti-abortion proposals in the first 25 years after Roe, abortion rights supporters continually warned that abortion restrictions would predominantly affect low-income folks, women of color, and young people. They rightly predicted—and later observed—that such restrictions were death to abortion rights by a thousand cuts, often disguised as concern for the “health and safety” of the patient. And at every turn, anti-abortion lawmakers and lobbyists mocked and pooh-poohed them as overreacting “Chicken Littles” complaining that the sky was falling.
But those abortion supporters were right, and not just because abortion is currently all but outlawed in Texas. They were right because every one of those early steps to infringe upon abortion rights and access—from bans on using public funds and resources for abortion care to singling out abortion providers for additional regulations and penalties—did lay the groundwork for abortion restrictions to come, and did serve to prevent low-income people, women of color, and young people from accessing abortion. Any limitation on abortion provision necessarily makes care harder to obtain for anyone who doesn’t have the means or resources to navigate or sidestep those restrictions, as well as for health-care professionals to provide. It’s just common sense.
But anti-choice rhetoric in Texas during those early post-Roe years took hold. From abortion-as-birth-control myths and “born-alive” propaganda to the “selling” of fetal tissue and the specter of “criminal” providers coercing and deceiving their patients, these narratives are deeply rooted in our collective political psyche—whether because many wrongly believe them or because many work tirelessly to combat them.
The real impact of these narratives, and the abortion restrictions they fueled, on the women and young folks and pregnant people they’ve harmed have routinely come second (if they were noted at all) to campaign talking points and political careers.
And so when George W. Bush and Rick Perry took office in Texas as governor and lieutenant governor in the mid- and late ’90s, respectively, the stage was set. Freed from the tyranny of even vaguely pro-choice Democrat decision-makers, the first thing the state legislature did was pass the restrictions on access to abortion for young people, which Republican lawmakers had been trying to usher through for 20 years. It then moved on to so-called informed consent laws. Soon after it would target abortion providers in an effort to shut down clinics and further squeeze abortion access.
Texas lawmakers didn’t come out of the gate passing mandatory waiting periods and ultrasounds or requiring doctors to disseminate medical misinformation, though they’d tried much of that before—instead, they kicked off the next 20-plus years of abortion regulations by restricting access for people who, quite literally, had no vote in the matter.