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After Supreme Court Ruling, What's Next for Abortion in Texas?

After the U.S. Supreme Court's ruling that found a Texas anti-abortion law unconstitutional, state lawmakers here are already plotting a course for new rules that could limit the practice of abortion.

Anti-abortion activists on the Texas Capitol lawn on the first day of the second special session of the Legislature, July 1, 2013.

Though the U.S. Supreme Court on Monday struck down a far-reaching Texas anti-abortion law because it placed an undue burden on a woman’s constitutional rights, state lawmakers here are already plotting a course for new rules that could limit the practice of abortion.

"I would expect an absolute onslaught of pro-life legislation in the next session," said state Rep. Jonathan Stickland, R-Bedford. “I’ve never been this upset before, I mean just like truly upset,” he said of the Supreme Court’s ruling.

With a Republican governor at the helm of the state’s government and large Republican majorities in both chambers of the Legislature, new anti-abortion laws would very likely have enough popular support to pass when lawmakers meet again in 2017. The question now facing conservative Texas politicians is how to craft new abortion restrictions that would survive further legal challenges — and whether there is enough urgency for lawmakers to convene an immediate, emergency session to try to pass a new law.

A spokesman for Gov. Greg Abbott, who can order state lawmakers to meet in a special legislative session to consider new laws, did not respond to a reporter’s question about whether the governor would do so.

But in the hours immediately following the Supreme Court’s ruling, dozens of state lawmakers began hinting at a new front in the state’s long-running battle over abortion rights, though they offered few specifics about what further anti-abortion laws might look like.

“This fight is not over,” said state Sen. Charles Perry, R-Lubbock, in a statement. “Next session we will revisit this issue to ensure both women and unborn children are protected.”

Lt. Gov. Dan Patrick chimed in, writing on Facebook: "Rest assured that the Texas Senate will continue to work to protect women's health in the next legislative session."

The 2013 Texas abortion law that was largely gutted by the court required all abortion-performing facilities to meet hospital-like standards — which include minimum sizes for rooms and doorways and pipelines for anesthesia. The high court found those rules, which clinic administrators said threatened to shut down all but 10 or so abortion clinics around the state, to be unconstitutional. Texas currently has 19 abortion clinics, compared to more than 40 that were open before the 2013 law known as House Bill 2 was passed.

The Supreme Court also struck down a provision of that law that required doctors to have admitting privileges at a hospital within 30 miles of an abortion clinic. Texas Republicans said those regulations were intended to protect women’s health.

But the high court ruled that it has an "independent constitutional duty" to review elected officials' reasoning for passing laws, not just take their word for it. That means in future abortion cases, Texas lawmakers will probably be forced to provide sound medical evidence, not just broadly say they're acting in the interest of women’s health and safety. 

Anti-abortion groups that have influenced the legal language of Texas’ abortion restrictions on Friday vowed to promote new regulations to take House Bill 2’s place. But representatives from those groups said they were still scrutinizing what restrictions remained legal under the court’s ruling.

“We do not know exactly what’s possible under this decision,” said Joe Pojman, executive director of the advocacy group Texas Alliance for Life. “We’re going to be poring through it with our attorneys and our physicians to figure out if the Supreme Court will allow the state to do anything meaningful to raise the safety standards at those freestanding abortion facilities.”

Pojman said his group would continue promoting “compassionate alternatives to abortion,” including asking lawmakers for more state funding for “pro-life pregnancy resource centers centers” that provide parenting information to low-income women. He said his group was also pushing for a "wrongful birth" law that would prevent parents from suing a doctor who fails to warn them about fetal problems. Abortion rights activists have opposed similar proposals, which they say give doctors the right to withhold information so women don't have abortions.

Stickland said the Supreme Court ruling made clear that lawmakers must “focus more on the child itself as opposed to anything to deal with the mother, from a legislative standpoint.” He pointed out that courts had not invalidated state bans on abortions after 20 weeks of pregnancy, including one passed in Texas as part of House Bill 2.

Texas Democrats, on the other hand, praised the Supreme Court’s ruling. State Rep. Donna Howard, D-Austin, said in a statement that state lawmakers “should refrain from pushing medically unnecessary policies which erect barriers to a safe and legal medical procedure.”

“If they do, it is now crystal clear that the courts — and the public — will forcefully stand in their way,” she said.

State Rep. Gene Wu, D-Houston, said in a statement that Democrats would be on high alert for new anti-abortion laws proposed by Republicans in the 2017 session.

"We will need to both watch with vigilance next session to ensure the Legislature does not pass more restrictive measures for women's reproductive health, and restore much of the funding cut from women's health programs," he said.

For more on this story, see how the Supreme Court ruled on Texas’ abortion clinic restrictions, what's next for Texas abortion clinics and what the ruling means for Texas women

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