During their 20 years in control of the Texas Legislature, Republican lawmakers have steadfastly worked to chip away at abortion access.
Bound by the limits of Roe v. Wade, which stopped them from enacting an outright ban on the procedure, lawmakers got creative. They required abortion clinics to have wide hallways and deputized private citizens to sue providers in an effort to shut down facilities that offer the procedure.
Future lawmaking on the topic will likely not require such ingenuity. A leaked draft of a U.S. Supreme Court opinion, published last week by Politico, suggests the court will reverse the landmark abortion ruling in the coming weeks, allowing states to regulate abortion as they see fit. Texas has a “trigger law” that would make performing an abortion a felony, which would go into effect 30 days after the Supreme Court overturns Roe.
Their decadeslong goal achieved, Republican lawmakers said there’s still work to be done. Texas GOP leaders and members of the Legislature said it is now time to turn their attention to strengthening the social safety net for women and children and investing in foster care and adoption services.
“It only makes sense,” said Rep. Steve Toth, R-The Woodlands. “The dog’s caught the car now.”
At least some of the more conservative members of the House said they also want to ensure strict enforcement of the abortion ban and to prevent pregnant Texans from seeking legal abortions in other states.
“I think I can speak for myself and other colleagues that align with my policy beliefs — we’ll continue to do our best to make abortion not just outlawed, but unthinkable,” said Rep. Briscoe Cain, R-Deer Park, a member of the far-right Freedom Caucus.
Texas already has an arsenal of statutes to punish virtually anyone involved in the procurement of an abortion, said University of Texas at Austin law professor Liz Sepper. These include last year’s Senate Bill 8, which empowers private citizens to sue anyone who “abets” an abortion after six weeks of gestational age, as well as unenforced pre-Roe abortion statutes criminalizing a person who gets the procedure, which the Legislature never repealed — some dating to the 1850s.
“If Roe is overturned, there’s already a criminal ban, there’s already an aiding and abetting ban, there’s already a ban on mailing medication abortion,” Sepper said. “In terms of law’s ability to change behavior, they’ve almost filled all the gaps — with the exception of criminalizing the pregnant person involved in an abortion.”
Cain said he has a particular interest in going after abortion funds, which seek contributions from donors to help defray the cost of out-of-state trips for pregnant Texans to receive the procedure, citing a state law that prohibits “furnishing the means for procuring an abortion.”
In a March letter to one such group, the Lilith Fund, Cain threatened to file a bill in the coming legislative session that would empower district attorneys to prosecute abortion-related crimes across the state even when local authorities refuse to do so.
Attempts to prohibit individuals from contributing to abortion funds would likely violate the First Amendment’s protections on free speech, said South Texas College of Law Professor Charles “Rocky” Rhodes.
“Helping people go get abortions is going to be one of these difficult questions that’s going to arise in a post-Roe world if a legislature tries to criminalize the ability of a pregnant person to get an abortion someplace where it’s legal,” Rhodes said.
Cain said he is in discussions with fellow Republicans about other abortion-related legislative priorities but that it is premature to discuss them. The next legislative session is scheduled to begin in January.
Texas Democrats, who are vastly outnumbered at the Legislature, characterized the leaked opinion as “bleak” but said they would not stop fighting for access to abortion.
“This will only power our fight to codify the right to abortion at the federal level,” Hannah Roe Beck, the Texas Democratic Party’s co-executive director, said in a news release. “It’s more important than ever that we elect leaders who are ready to put everything on the line to get this through Congress. We cannot tolerate anything less.”
An effort in Congress to do this, however, failed to pass the Senate in February. Another vote scheduled for this week is also expected to fail.
Austin state Rep. Donna Howard spoke of expanding the safety net in terms of pregnant Texans who still will be seeking abortions.
“How do we provide enough health care to those who we are going to be forcing to have pregnancies and carry them to term?” Howard said. “It’s more going to be a focus, I think, on that now, if there’s a way to look at how people can access medication abortion that is a way to get around the law.”
Lt. Gov. Dan Patrick, a staunchly conservative Republican, said in a statement Tuesday that the Legislature would continue to strengthen adoption programs in the state.
“Texas has led the way to protect innocent life in the womb, and we will continue to do so moving forward in the Texas Senate,” Patrick said.
Gov. Greg Abbott did not respond to questions from The Texas Tribune about abortion-related legislative priorities for the coming session in January. House Speaker Dade Phelan said in a statement that he was confident the Legislature would “rise to the occasion and redouble our commitment to maternal health care in our state.”
State Sen. Bryan Hughes, R-Mineola, the author of SB 8, did not respond. He posted on Twitter on Thursday that Texas would “lead the way in a post-Roe world.”
Republicans have good reason to avoid discussing enforcing Texas’ pre-Roe laws, said Renée Cross of the Hobby School of Public Affairs at the University of Houston: A full abortion ban is broadly unpopular with voters.
Just 15% of respondents in a University of Texas at Austin poll released this week said they support prohibiting all abortions. More troubling for Abbott’s reelection bid this year, Cross said, is the fact that a majority of independents said they believe abortion should be available in most circumstances.
“The Republican Party has been able to rely often on independent voters, but not on this issue,” Cross said. “We saw some Republican voters, particularly suburban women, not vote for President Trump in 2020. A lot of those women will probably think twice about voting for Gov. Abbott.”
Other Republican lawmakers spoke about pitching nonpunitive measures in the upcoming legislative session. Toth said if abortion is outlawed in the state, Republicans in the statehouse will focus on expanding social programs to help pregnant women and their children.
“Now more than ever, the pro-life community and legislators need to step up and make sure we help out women in a crisis pregnancy,” he said. “It means prenatal care, helping them stay in school. It means making sure that we help women once the baby is born, it means adoption services.”
Toth said the expansion of safety net programs would be a “moral response” to the outlawing of abortion in the state. Such an expansion would require an increase in state funding for adoption services, foster care and welfare programs, which Republicans have been hesitant to support in the past. But Toth, a member of the staunchly conservative House Freedom Caucus, said he believes GOP lawmakers would now support the increased funding.
Joe Pojman, executive director of the anti-abortion group Texas Alliance for Life, said he would also support an increase in funding for the Alternative to Abortions program, which the Legislature funded with $100 million this two-year budget cycle. The program pays a far-flung network of nonprofits — many of them ardently anti-abortion — for counseling, classes on prenatal nutrition and newborn care, and the provision of baby items.
But Pojman says lawmakers need to better promote the program so more pregnant people have access to it.
“For a lot of women who find themselves pregnant, they don’t even know that those exist,” he said.
State Rep. Giovanni Capriglione, R-Southlake, who is a member of the budget-writing House Appropriations Committee, said he would support an increase in funding for social safety net programs for pregnant women and young children.
He said he’d push for an increase in Medicaid coverage for low-income new mothers. That coverage was increased last year from 60 days to six months, but experts had recommended extending it by a whole year.
House lawmakers agreed to extend it by a year, but the Senate brought the coverage back down to six months during final negotiations in the 2021 legislative session.
“We have to now work really hard to help these new moms and these new babies,” Capriglione said. “I’m going to be pushing for it.”
But Republicans are also preparing for a protracted fight with Democrats in Congress who will be reenergized to push for access to abortion at the federal level.
“This is not going to go away,” Toth said. “Nothing really changes.”
Rhodes, the South Texas law professor, said the potential overturning of Roe could also weaken federal protections ensuring access to contraceptives. He said states could consider reclassifying emergency contraception such as Plan B, the pill that prevents pregnancy by the delaying the release of an egg from the ovary, as forms of abortion.
“It’s pretty wide open, with how creative our Legislature has been lately, for creating additional restrictions on our reproductive freedoms,” Rhodes said.
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