Why Texas is unlikely to let voters decide on abortion access

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

Despite the state’s near-total ban on abortion, just 12% of Texans think abortion should be illegal in all cases, according to an August poll from The Texas Politics Project. One Texas Democrat hopes to give voters more of a say in abortion policy.

State Rep. James Talarico, D-Round Rock, filed a joint resolution that would bar the Legislature from restricting abortion access any further. Talarico’s proposal is different from a normal bill filed for the Legislature to consider. Joint resolutions, once passed by the Legislature by a two-thirds majority, must be approved by Texas voters in a statewide election as a ballot proposition before they directly amend the state’s constitution.

Voters have approved amendments to the state’s constitution many times throughout the years, but Talarico’s amendment is unlikely to end up at the ballot box anytime soon.

“I think it’s still a steep hill to climb,” Talarico acknowledged. “It’s not impossible — which I think proposing a total repeal of the abortion ban, I think that is impossible. This is not impossible, but it’s still difficult.”

A steep hill to climb

Talarico said that he knows that “the political reality” of a Republican-controlled Legislature and a GOP governor means that proposing a total repeal of the laws banning abortion would be “impossible.” Instead, he hopes that his approach will garner more bipartisan support since it does not inherently increase access to abortions.

“[This] is not necessarily a pro-choice or an anti-choice bill,” Talarico said. “It takes the authority out of our hands and gives it directly to the people that we serve and represent, and I’m hoping that that idea will start to gain traction amongst all my colleagues in this building.”

Even if the joint resolution does not pass in this legislative session, Talarico hopes it will spark a discussion that could be revisited in future legislative meetings.

“It’s often the case that ideas need to be proposed in multiple sessions before they finally become law,” Talarico said. “Next session, maybe the session after that, as abortion continues to define our politics, as it increasingly becomes a difficult issue for some of my Republican colleagues since so many Texans are pro-choice, this may be an idea that can build momentum.”

Talarico’s proposal certainly wouldn’t be the first time the state amended its constitution. While the United States Constitution has just 27 amendments, Texas’ has more than 500. That doesn’t include the 180 proposed constitutional amendments that voters have rejected throughout the state’s history.

Amending the state’s constitution is much easier than amending the nation’s — and is often necessary. The state’s constitution is long, detailed and specific in the powers it grants lawmakers and public officials.

In 2019, for example, voters approved a state constitutional amendment that allowed retired service animals like police dogs to be adopted by their handlers. Lawmakers had to ask for voter approval because police dogs were considered state property, which the state’s constitution requires be auctioned off or destroyed.

Constitutional amendments require a two-thirds majority of both the House and the Senate, while regular bills only require a simple majority. However, the governor doesn’t wield veto power over joint resolutions — they head straight to the ballot once passed by both chambers.

The challenge facing Talarico’s proposal lies in its subject matter.

Though voters have overwhelmingly expressed in public polling that their stances on abortion do not align with current state laws, experts express skepticism that lawmakers will pass Talarico’s resolution.

“Last session’s Legislature passed one of the most restrictive abortion laws in the country, fully aware of what the public opinion landscape looked like because it hasn’t changed,” said Josh Blank, director of research for The Texas Politics Project. “And it hasn’t changed since the Dobbs decision. Given that, there’s very little reason to believe that the majority party in the Legislature would, one session later, significantly change its abortion policy.”

Additionally, the wording of Talarico’s proposed ballot item makes it less enticing for legislators to pass, according to Blank.

“He’s trying to tie the Legislature’s hands. … Setting aside the fact that we’re talking about abortion policy here, it’s pretty rare that legislative bodies voluntarily agree to limit their own power,” Blank said

Ballot propositions in other states

In 2022, six states across the country created abortion-related ballot measures that allowed citizens to vote directly on the issue, rather than a legislature determining abortion laws. In historically conservative states such as Kansas and Kentucky, voters rejected ballot initiatives that could have further restricted abortion access.

Talarico is hoping his Texas version of the ballot initiative will receive similar support from voters if passed by the Legislature.

“Kentucky and Kansas are not blue states or purple states. They’re deep red states. And still, their voters came together across partisan lines to protect access to abortion,” Talarico said. “I think Texans will do the same if they’re given the chance.”

The ballot initiative proposed by Talarico frames the issue differently than in Kansas and Kentucky. Talarico’s initiative would allow voters to choose whether they think the legislature should have the ability to pass any additional laws that would further restrict access to abortion in Texas. The ballot initiatives in Kansas and Kentucky, on the other hand, allowed voters to affirm or deny that their state’s constitutions do not inherently create a right to abortion.

Other options

Some Republican lawmakers have indicated that they are willing to consider legislation that would increase exceptions for abortions in the case of rape and incest.

Anti-abortion groups, on the other hand, are happy to rest on their victories. Texas Right to Life President John Seago said that Talarico’s bill is “completely unnecessary.”

“If Texans really wanted to undo the pro-life victories, then they need to elect pro-abortion majorities in both chambers, and that obviously has not been what the electorate has decided to do in the last election,” Seago said.

Instead, Seago says the anti-abortion lobby will be focusing on “enforcement” of the state’s current ban as it’s main legislative priority — including addressing district attorneys who say they will not prosecute individuals who break the state’s abortion laws.

Other Democrats, meanwhile, have filed a number of traditional bills addressing abortion access, including one that would create an exception for rape and another that would essentially repeal current laws banning the procedure.

“With anti-abortion politicians in the majority, advancing abortion rights will be a challenge, but we remain committed to exploring all viable options and working with partners in the long fight ahead,” said Drucilla Tigner, a spokesperson for Planned Parenthood Texas Votes.

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.