The discussion is shedding light on a provision in the restrictive abortion legislation she tried in vain to stop last year — the part that bans abortions after 20 weeks of pregnancy, including in many cases when there are fetal abnormalities.
Neither the Davis campaign nor her opponent in the Texas governor’s race, Attorney General Greg Abbott, would discuss how the law might have impacted Davis had it been on the books years ago. Abbott, in a brief interview, would say only that severe fetal abnormalities are “covered” under the new law.
But leading abortion rights experts on both sides of the issue say a woman facing the same circumstance in Texas today — assuming it arose after the 20-week mark — probably would not be allowed to terminate her pregnancy.
That’s because women can invoke the fetal abnormality exemption only if it's determined that the fetus can’t survive outside the womb.
Davis wrote in her book, Forgetting to be Afraid, that doctors told her that her unborn daughter would “likely” not survive and that even if she did “she would probably be deaf, blind, and in a permanent vegetative state.”
But permanent disability, no matter how severe, doesn’t qualify as a reason to terminate a pregnancy under the new abortion law, which is known as House Bill 2. Texas is one of nine states that ban abortion at 20 weeks after fertilization. Supporters of the bans say a fetus can feel pain at that point, but many scientists dispute that. Opponents of the bans emphasize that the U.S. Supreme Court has ruled that a woman has a right to an abortion until the fetus is viable outside the womb, usually around 22 weeks after fertilization.
The Texas law provides exceptions to the 20-week abortion ban: when the life of the mother is at stake, and cases in which there are “severe fetal abnormalities.” It defines that fetal affliction as so serious that it’s “incompatible with life outside the womb.”
“If a child could continue to live but be in a vegetative state, then this section would not apply,” said Joe Pojman, director of the anti-abortion group Texas Alliance for Life. “If the child could continue to live after birth with all available medical treatment, then HB 2 would prevent an abortion.”
Another leading abortion foe agreed.
“Any time they say likely, that’s not a clear diagnosis,” said Carol Everett, founder and CEO of the Heidi Group, which helps pregnant girls and women. “According to the book, she does not meet the standard in HB 2 for fetal abnormality. Because they only said ‘likely.’ They didn’t say 'clearly.'”
Both Pojman and Everett said they don’t have enough information to say for sure how the law might have affected Davis had it been in effect when she terminated her pregnancy in 1997. A University of Texas/Texas Tribune Poll last year found 62 percent of Texas registered voters support a 20-week abortion ban, while in 2014 another UT/TT Poll found that 57 percent of the respondents would allow abortion when there is a "strong chance of a serious defect in the baby."
Whether or not it's a popular idea, Pojman said his group believes that an unborn child with severe abnormalities should be afforded the same right to life as a newborn infant in the same condition.
While Davis has been promoting her book on national TV shows, the Davis campaign declined to make her available for an interview, and aides wouldn’t say Wednesday whether her abortion occurred after the 20-week mark or if the fetus would have met the narrowly crafted exceptions the new Texas abortion law allows today.
In a written statement, Davis spokesman Zac Petkanas said Davis considered the abortion a “personal tragedy” and has “not thought about the loss of her daughter in political terms.”
Abbott, meanwhile, told The Texas Tribune in a brief interview Wednesday that he couldn’t speak about Davis’ case in particular but pointed to the fetal abnormality exemption in the law.
“It would be inappropriate to speak to her situation. I'm not aware of all the details involved,” Abbott said. “In the scenario that there is severe fetal abnormality — that's a part of HB2. It's covered in HB2."
It’s not clear whether the exceptions in the law have allowed any late-term abortions to occur legally since the ban took effect last year. Before the law took effect, abortions after 20 weeks were already rare. Now advocates on both sides of the issue say the ban has either dramatically curtailed or stopped the practice altogether at abortion clinics.
One woman who discovered a severe abnormality in her fetus after the ban became law ended up going to Arkansas to get an abortion after hitting a series of dead ends in Texas, according to a riveting story this year in the Texas Observer.
The woman, when she was almost 20 weeks pregnant, was told her baby would either be stillborn or die soon thereafter, but still no one she contacted in Texas would perform the procedure, according to the report.
“I’m not aware of anyone past 20 weeks who’ve done this. The clinics aren’t doing them. They’re already under the microscope,” said Heather Busby, executive director of NARAL Pro-Choice Texas, an Austin-based abortion rights group. “Most doctors are going to err on the side of 'I can’t risk this.' ”
Because the law provides for sanctions against medical providers who perform abortions in violation of the 20-week ban, she said women who invoke the fetal abnormality exception are likely to hit a wall of resistance no matter what the facts are.
“This is having a chilling effect on physicians,” Busby said. “So I think it would be difficult to do.”
Texas Tribune reporter Christine Ayala contributed to this story.