Where does the anti-abortion movement in Texas go next?
Three years ago, the state's abortion opponents were celebrating passage of House Bill 2, the restrictive abortion law — called the "bill of the century" by some — muscled through the Legislature in two special sessions. But in June the U.S. Supreme Court not only ruled the bill's major provisions unconstitutional, it also raised new legal hurdles for limiting women's access to the procedure.
The state's two largest anti-abortion groups — which had already been squabbling over strategy — find themselves looking for new legal avenues to press their cause, and appear to disagree on the best path forward.
Republican lawmakers were quick to promise an “onslaught of pro-life legislation” when they reconvene in January. But so far, anti-abortion activists appear to be at a loss for a clear, new strategy to push abortion restrictions.
In a 5-3 vote, the high court overturned HB 2's restrictions requiring Texas facilities performing abortions to meet hospital-like standards, and for abortion doctors to have admitting privileges at a hospital within 30 miles of their clinic. But even in legal defeat the law had an effect, leading to closure of more than 20 abortion clinics in the state.
The justices also set the bar higher for states trying to limit access to abortions, ruling that courts have an “independent constitutional duty” to review lawmakers’ reasoning for passing abortion restrictions and cannot simply rubber stamp new regulations based on broad claims about acting in the interest of women’s health and safety.
For Texas Right to Life and Texas Alliance for Life — two of the state's most active anti-abortion groups — the ruling appears to be driving a further wedge between the groups as each considers its distinct agenda for the 2017 session.
Emily Horne, a lobbyist with Texas Right to Life, said the group plans to focus its efforts on protecting fetal life. One approach, she said, will be focusing on banning dilation and evacuation (D&E) abortions, a surgical procedure typically performed in the second trimester of pregnancy.
That type of procedure was used in about 7 percent of abortions performed in Texas in 2014.
Horne said Texas Right to Life hopes to use a 2007 high court decision to argue that restricting D&Es is constitutional. In that case, the court upheld a national ban on “partial-birth” abortion, a specific method used in late second-trimester abortions. While that procedure differs from a D&E, Horne said Justice Anthony Kennedy’s words from the majority opinion regarding the “dignity of human life” could be applied to other abortion procedures as well.
But it’s unlikely those types of bans, which “disregard” women’s choices, would hold up in court under the recent ruling and other precedents, said Rupali Sharma of the Center for Reproductive Rights, which represented abortion providers in the Supreme Court case.
“This sort of restrictions simply can’t stand,” Sharma said. “They impose medical dangers on women but also disregard their decision making.”
Meanwhile, Texas Alliance for Life appears more focused on administrative regulations. Joe Pojman, the group’s executive director, said its agenda includes increasing funding to the state’s Alternatives to Abortion program, increasing data collection on abortion complications and banning wrongful birth lawsuits, which allow parents to sue doctors for failing to properly warn them of the risks of giving birth to a child with serious abnormalities.
He also wants to build upon a bill passed last legislative session that requires abortion clinic employees to be trained in handling victims of human trafficking, possibly by increasing penalties for anyone who forces a woman to get an abortion.
“We are all aware human trafficking is a huge problem in Texas,” Pojman said. “Some of these women may be becoming pregnant and brought to abortion facilities and forced to undergo abortions. Somebody has to do something to protect these women.”
It’s also likely that the group will back legislation related to fetal tissue, including a proposal to prohibit scientific research involving tissue from aborted fetuses — research that’s carried out at some Texas universities.
With anti-abortion activists exploring varied options, their counterparts on the other side of the issue are equally uncertain about what approach to take on the defensive end.
Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, said he cannot predict what angle the anti-abortion activists will take but that the Supreme Court ruling gives the reproductive rights movement more strength to fight back.
“They will have an agenda, but only they know what tactics they’ll take,” he said. “We are in a position to react, but in a much stronger position now that the court has said you can’t just turn these lies into laws and not expect the court to look at the evidence behind it.”
With a Republican governor and large conservative majorities in both legislative chambers, anti-abortion laws would easily garner enough support under the pink dome.
But two years after passing HB 2 — and with a Legislature considered even more conservative than in years past — Republican lawmakers left the 2015 session having passed just one piece of legislation to further restrict the procedure.
That measure tightened the requirements on “judicial bypass,” the legal process that allows minors to obtain court approval for an abortion if asking their parents for permission could endanger them. Meanwhile, more than 20 other bills that would have further restricted the procedure were left on the table or failed somewhere along the legislative process.
Among those measures was a ban on abortions based on the sex of an unborn child and a bill that would have removed an exception from the state’s 20-week limit on abortion in cases of severe fetal abnormalities.
In the wake of the Supreme Court ruling, the larger political conflict between liberals and conservatives over abortion is unlikely to change.
Texas Republicans have a history of “testing boundaries” of the legal framework around abortion and have been successful, given public opinion, when their limits on abortion “aren’t quite read by the public as undermining the fundamental right to abortion,” said Jim Henson, Texas Tribune pollster and director of the Texas Politics Project.
“At this point, it’s a matter of seeing whether you can get critical mass in the political world” now that the court has “brightened the boundaries,” he added.
The Supreme Court ruling could complicate Republican efforts to the extent they’ll be forced to provide sound evidence to push additional abortion restrictions. Any lack of evidence gives Democrats an easy opening to frame those efforts as threatening a woman’s constitutional right to abortion.
“In a simple way, I think what you’ve seen over the last 20 to 25 years has been a testing of gray areas — some of those areas have been made more black and white now,” Henson said.