Texas’ near-total abortion ban caps a decadeslong war by conservative legislators to block access to the procedure
Getting an abortion in Texas has become more difficult than anywhere else in the nation.
Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.
In 2014, dozens of Texans huddled together in the parking lot of a McAllen abortion clinic for a candlelight vigil to mourn its last day open. One of the only abortion providers for hundreds of miles, the clinic had provided the procedure since opening in the 1970s — but a new state law had forced it to shut down.
The law, passed by the Legislature in 2013, shuttered almost half of all Texas abortion clinics as it required them to meet hospital-like standards, including minimum sizes for doorways and rooms. Lawsuits would swirl in local and state courts for years before the U.S. Supreme Court eventually struck down the Texas law in 2016 for burdening abortion access.
The Whole Woman’s Health clinic in McAllen was one of only a few to reopen. Because of the law, Texas went from having 40 abortion providers to 19. By 2020, there were even fewer — 15 licensed clinics in a state with a population of nearly 30 million people.
Now, abortion providers say they’re experiencing the same wariness and fear — feelings that never really went away, said Amy Hagstrom Miller, CEO and founder of Whole Woman’s Health.
Texas’ newest abortion restriction, which bans the procedure as early as six weeks into pregnancy, is the latest, most devastating blow from lawmakers who have been on a warpath to steamroll abortion access for decades.
“It's been a battleground for this issue for a generation,” Miller said.
The new law — which is enforced by inviting private citizens to sue abortion providers — blocks all abortions after fetal cardiac activity is detected, when many people don’t yet know they are pregnant. The anti-abortion organization Texas Right To Life estimates that at least 2,000 abortions have been stopped since the law, passed as Senate Bill 8, went into effect earlier this month.
The U.S. Supreme Court refused a request to block the law, though its constitutionality has not been decided yet. But the U.S. Department of Justice announced it was suing Texas on the basis of SB 8’s unconstitutionality last Thursday after the Supreme Court declined to block its effects. On Monday, at least two people using the new law filed lawsuits against a doctor who admitted to performing a prohibited abortion.
When the law was implemented on Sept. 1, providers didn’t close down. But they did start turning a majority of their patients away, making Texas the hardest state to get an abortion in compared to the rest of the country.
Around the time of the Roe v. Wade landmark decision in 1973, the anti-abortion movement was smaller and less organized, said Mary Ziegler, a law professor at Florida State University who studies the legal history of reproduction and the Constitution.
“Southern Baptists weren’t really opposed to abortion in a cohesive way until the 1980s,” Ziegler said. “Southern Baptists have a large presence in Texas. ... They were opposed to what they called ‘abortion on demand’ and in favor of abortion under limited circumstances.”
Things started changing in 1977, when Congress passed the Hyde Amendment, which blocks the use of federal Medicaid funding to pay for abortions, except in cases where the mother’s life is in danger or if the pregnancy resulted from rape or incest. A Texas law also empowered hospitals to refuse abortion services without providing a reason.
In 1985, Texas lawmakers passed a requirement that only licensed physicians could perform abortions, excluding nurse practitioners and consequently increasing the cost of abortions.
These limitations disproportionately kept low-income people from obtaining the procedure, a trend made worse by Texas’ latest restriction, said Caitlin Myers, an economics professor at Middlebury College who studies the impacts of abortion policies.
“The women who are seeking abortions do come from all walks of life, but many of them are in the middle of really difficult circumstances where even a travel distance of 50 miles, even requirements they have to go to the provider twice — these are obstacles some of them just can’t surmount,” Myers said.
Starting in 1999, each legislative session in Texas began dispensing more rules and regulations related to abortion. The “Woman’s Right to Know Act” forced doctors to provide reading materials about 24 hours ahead of a procedure warning of its risks. Abortions after 16 weeks were required to occur at a licensed ambulatory surgical center. And parental consent became a requirement for minors in 2005.
Also in 2005, the state banned all abortions after 24 weeks of pregnancy.
At the same time, Texas started funding the Alternatives to Abortion program, which has grown into a $100 million program despite there being almost no data collected on its real impacts. The program gives funding to contractors who attempt to persuade Texans to not have abortions.
“Since I opened Whole Woman’s Health in 2003, every single time the Legislature comes to meet, there’s at least one if not a handful of restrictions that they’ve passed on people’s access to abortion services,” Miller said. “And it has absolutely nothing to do with the need for abortion or the public health outcomes in our communities. It’s simple, straightforward politics.”
The anti-abortion movement grew in power, influencing more lawmakers’ decisions as the makeup of the Texas Legislature became more conservative. Many groups started advocating for the abolition of all abortion services.
Human Coalition, a national organization opposed to abortion, was founded in 2009 and has grown into a comprehensive network hoping to eradicate the need for abortion.
“As restrictions on abortion have increased in Texas, so have resources and assistance for pregnant women. Texas has spent decades laying the groundwork to become an abortion-free state with unprecedented services like the Alternatives to Abortion and Healthy Texas Women programs,” said Chelsey Youman, Human Coalition’s Texas state director, mentioning another state-funded program that provides health care for pregnant Texans.
In 2011, the state shifted more of its focus to abortion providers rather than patients, cutting two-thirds of state funding from Planned Parenthood’s family planning clinics and prohibiting local funding of hospital districts that provided abortions.
“The strategic shift was toward making it more and more expensive and more and more difficult to provide abortions, so that there would be fewer and fewer providers,” Myers said.
The most common procedure used for second-trimester abortion, known as a dilation and evacuation, was banned by an act of the Legislature in 2017. Despite Whole Woman’s Health challenging the law in court, the 5th Circuit Court of Appeals ruled in the state’s favor just last month, which led to the ban going into effect only just this year.
“These losses don’t change what we stand for, the values that we have and what we believe our patients are capable of,” Miller said. “But these maternal health outcomes are just destroyed by restrictions on family planning and restrictions on access to safe abortion. It affects families all over the state.”
As a result of the ever-growing limitations, more people have flocked out of state for abortions or turned to self-managed methods with medication often found through online pharmacies.
States that heavily restricted abortion access had significantly higher demands for self-managed abortion methods through the nonprofit Aid Access, according to a 2021 study published in a medical journal.
But a law that passed the most recent special session threatens doctor’s abilities to prescribe these medications, too.
“This has been happening for a long time,” said Caroline Duble, political director for Avow Texas, an abortion advocacy group. “Advocates in states like Texas have been begging the federal government for greater protections for a very long time because we’ve always known that the day could come, that the Supreme Court would not save us and would not be our final backstop.”
And although the 2013 Supreme Court struck down the law requiring hospital-like standards, today’s Supreme Court has a conservative majority that anti-abortion advocates hope will eventually overturn Roe v. Wade.
If it happens, a Texas “trigger law” criminalizing all abortion procedures would fall into place 30 days after the court’s decision.
“This is a direct result of the political context that we’re in, after a Trump administration and decades of Texas Legislature chipping away at our already very vulnerable health care infrastructure,” Duble said.
Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
Join us Sept. 20-25 at the 2021 Texas Tribune Festival. Tickets are on sale now for this multi-day celebration of big, bold ideas about politics, public policy and the day’s news, curated by The Texas Tribune’s award-winning journalists. Learn more.
Quality journalism doesn't come free
Perhaps it goes without saying — but producing quality journalism isn't cheap. At a time when newsroom resources and revenue across the country are declining, The Texas Tribune remains committed to sustaining our mission: creating a more engaged and informed Texas with every story we cover, every event we convene and every newsletter we send. As a nonprofit newsroom, we rely on members to help keep our stories free and our events open to the public. Do you value our journalism? Show us with your support.Yes, I'll donate today