Bipartisan support for Texas bill clarifying when doctors can perform an abortion shows early cracks

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The initial and enthusiastic bipartisan support to clarify Texas’ abortion laws is hitting the realities of the legislative process, as forces from each side of the debate raise concerns.

At a House committee meeting Monday, conservative lawmakers questioned the need for this clarification and whether doctors would use it as a workaround to provide “elective abortions on demand,” as Katy Rep. Mike Schofield put it.

At the same time, Democrats and abortion access advocates pushed for an amendment to ensure the bill didn’t accidentally revive the possibility of prosecuting women who have abortions, or those who assist someone in traveling out of state to terminate.

On its face, House Bill 44 and its companion, Senate Bill 31, is straightforward legislation. It does not expand abortion access but rather aims to harmonize Texas’ various abortion statutes and clarify at what point doctors can perform an abortion to save a pregnant patient’s life or prevent the loss of major bodily function, like future fertility. The legislation has garnered widespread support from anti-abortion groups, health care officials, medical associations and lawmakers from both sides of the aisle.

“It's simple: We do not want women to die from medical emergencies during their pregnancies,” Rep. Charlie Geren, a Fort Worth Republican, said as he introduced the bill Monday. “We don't want women's lives to be destroyed because their bodies have been seriously impaired by medical emergencies during their pregnancies.”

The carefully negotiated bill received a warm reception from a Senate committee, but just 10 days later, House committee members took a sharper tone, showing just how complicated Texas’ abortion laws are — and how difficult addressing these controversial statutes can be.

Both the House and Senate committees are expected to vote whether to move the legislation to the floor in the coming days.

Threat of criminalizing women

A major barrier to amending Texas’ abortion laws is that not everyone can agree on what Texas’ abortion laws are.

The two modern laws are clear: one prohibits performing, aiding or abetting abortions after six weeks of pregnancy, and the other prohibits performing an abortion from the moment of conception, punishable by up to 99 years in prison. Both have an exception to save the life of the pregnant patient, and neither allows criminalizing the person who has the abortion.

The issue is with a much older, vaguer law. Passed in 1857, this law makes it a crime to perform or “furnish the means” for an abortion, and does not exempt the person who has the abortion from criminal charges. This law was in effect until the U.S. Supreme Court ruled it unconstitutional in Roe v. Wade in 1973, and remained on the books, unenforceable, ever since.

When Roe was overturned in 2022, Attorney General Ken Paxton claimed these laws were back in effect, an argument conservative lawmakers and anti-abortion lawyers have made repeatedly in the three years since.

On the other side, abortion advocates and their lawyers cite several federal court rulings that say the laws are “repealed by implication” and remain unenforceable, including a 2023 ruling that said groups that fund out-of-state abortions are likely safe from prosecution under this law. That case is ongoing.

Amending this statute as part of the clarifying law runs the risk of reviving it and risking potential criminalization of pregnant women and those who help them get abortions, several people argued at the hearing Monday.

“It would criminalize pregnant women who obtain any abortion other than one performed in a medical emergency,” Elizabeth Myers, an attorney who represents abortion funds, testified, adding that this law “would criminalize friends and family who provide information or money for Texas women who leave the state.”

Geren, as well as the anti-abortion groups who testified, said there was no intention to use this bill to revive the pre-Roe law. Joe Pojman, with Texas Alliance for Life, said he was “baffled” when this question came up. John Seago, with Texas Right to Life, said there was no need to use this bill to revive the old law, as his group believes it is still in effect.

Rep. Ann Johnson, a Houston Democrat who has signed onto this bill as co-author, raised the prospect of an amendment that would remove the consequences of reviving the 1925 law. Steve Bresnen, a health care lobbyist who led the effort to draft the bill, said they’d committed to adding no amendments unless the disparate groups agreed to them.

Pojman testified that his group would support an amendment that clarified the legislative intent was not to revive the 1925 laws. Seago was more cagey, saying he didn’t want to weigh in while negotiations were ongoing, but said there are amendments circulating on the Senate side that would specifically exclude criminalizing the pregnant woman.

“That’s a better way of going at it,” he told The Texas Tribune. “But there’s a list of amendments to be debated in the Senate that we’re negotiating on, and that’s why I don’t want to jump out of line and commit to anything.”

Seago’s group is also behind Senate Bill 2880, a wide-ranging abortion crackdown that would make it a felony to pay for someone to travel out of state for an abortion. If that passes, he said, there would be no need for the “furnish the means” language that’s in the pre-Roe statutes.

“I think people are hoping they can just get this bill and no other pro-life bills,” he said. “That would not be sufficient to me, and we’ve communicated that to leadership on both sides.”

Conservative pushback

Monday’s hearing revealed more details on how this bill came to be, after nearly three years of Republican leaders insisting the laws did not need to be clarified.

Steve and Amy Bresnen, two health care lobbyists and lawyers, previously petitioned the Texas Medical Board to offer more clarification to doctors. Disappointed by the response they received from that body, the duo turned to the work of crafting clarifying legislation.

The bill was closely negotiated between the medical associations and anti-abortion groups to ensure it is offering doctors more guidance without expanding abortion access, Steve Bresnen said Monday.

“This bill was tightly drafted so we didn't have every abortion battle in the world on the House floor,” he said.

But that wasn’t enough to fully quell conservative backlash. Reps. Mike Olcott and Katrina Pierson repeatedly questioned how many times doctors delayed or denied medical care due to confusion over the laws, how many women had died, and whether these clarifications were necessary.

“I think everyone in this room wants to protect the life of the mother, and many of us want to protect the life of the unborn as well,” Olcott, a Fort Worth Republican, said. “I'm just wondering where this came from.”

He said he was worried this was creating a “checkbox” for doctors to get around the strict laws.

“When abortion was legal, the abortionists were physicians,” he said. “So what prevents just getting around the intent of the law by just having abortion on demand and checking a box, going ‘yes, the major bodily function could be an issue’?”

Doctors, lawyers, hospital administrators and anti-abortion groups testified repeatedly that abortion is fully banned and will remain so, with only this narrow exception in cases of significant medical distress.

Geren, a staunch anti-abortion Republican, and Johnson, a proudly pro-abortion Democrat, both reiterated that this was not a “pro-choice bill” aimed at expanding abortion access.

“I have voted for every anti-abortion bill that’s been in front of the house since I’ve been here for 24 years,” Geren said. “This is not a choice bill. This is a protect-the-mothers’-life bill.”

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