Texas' abortion bans are here to stay despite narrow clarification

Yahoo

3 days ago

Standing before the Texas House of Representatives, Rep. Charlie Geren laid out his long history of voting for anti-abortion bills. He lauded the fact that Texas doctors could face up to 99 years in prison for performing an illegal abortion, saying 'they would deserve it.' He stressed that he was, in no way, interested in promoting abortion.
Bonafides established, Geren turned to presenting a bill to narrowly clarify the state's near-total abortion ban, ensuring pregnant women who were otherwise going to die, likely taking their fetus with them, could receive life-saving abortions.
The bill passed, to the great relief of doctors and hospitals who have been nervously treating complicated pregnancies under threat of life in prison for the last three years. But despite all the politicking required to get the legislation over the finish line, Texas' abortion laws have not meaningfully changed.
And if this session was any guide, abortion advocates say, they won't be changing anytime soon.
'Texas is still a state with an abortion ban, and an abortion ban is just an abortion ban, period,' said Shellie Hayes-McMahon, executive director of Planned Parenthood Texas Votes. 'I can't really celebrate what is like an arsonist bringing a cup of water to a fire.'
The overturn of Roe v. Wade was supposed to be a disaster for Republicans. These laws wouldn't stand, common wisdom held, and if they did, they would cost candidates responsible for them dearly at the ballot box. Women would die, doctors would flee and anti-abortion groups would be cast out of the party's inner circle, blamed for the forthcoming public relations crisis.
But three years later, the lawsuits seeking to overturn or amend the abortion bans have fizzled. Elections have only further entrenched lawmakers who enacted these laws in the first place. And when it came time to negotiate this amending legislation, anti-abortion groups were at the negotiating table.
Steve and Amy Bresnen, lobbyists for the bill, said they started with bigger ambitions, like adding in more exceptions and removing the life-threatening requirement.
'But if you do the work we do, you realize you have to go get what you can get,' Steve Bresnen said. 'We're not Gandhi. We're not Jesus. We're not Mohammed.'
When Roe v. Wade was overturned in 2022, Lauren Miller was sure this wouldn't stand. She didn't yet know she was pregnant, let alone that she would soon need to call on protections that were no longer available to her. But as a seventh-generation Texan who had watched the rising tide of anti-abortion legislation, she'd gotten used to the idea of some higher authority swooping in to save the day.
'I didn't think they'd undo the fall of Roe, because groups spent decades getting to this point,' she said in 2023. 'But I thought all the voices would rise up against it, unified, and that would make a difference.'
Three years — plus a doomed pregnancy, a frantic trip to Colorado, a lawsuit, a Congressional testimony, campaign appearances, and a season fighting at the Legislature — later, and Miller's usually indefatigable faith in Texas has waned a bit.
'We got a few scraps,' she said about the clarifying bill. 'It's frustrating to tell your story and feel like nothing is changing. I feel like the failures of the Texas Legislature are going to have to impact [everyone] personally before they realize they can't keep voting for these people.'
'And that could take a long time,' she added.
Without the safety net of Roe v. Wade, an initial lawsuit challenging one of Texas' abortion bans sputtered quickly. Two others, challenging the 2021 ban and seeking to protect abortion funds, are slowly crawling through the court system.
The most significant suit came from 20 women, including Miller, who said they were denied medically necessary abortions. Compared to pre-Dobbs litigation, this suit was narrow, asking the court to find the laws were unconstitutional as they applied to complicated pregnancies. The same lawyers also sued on behalf of Kate Cox, a Dallas mother of two who was experiencing medical complications related to carrying a non-viable pregnancy.
The Texas Supreme Court ruled against Cox, and later, against the 20 women.
'I never have expected a silver bullet, a single death, a single case, to change everything overnight,' said Molly Duane, senior counsel for the Center for Reproductive Rights, which brought those suits. 'That's not how change happens in this country.'
Despite these losses in court, Duane said she remains optimistic that the same outrage that forced lawmakers to consider a clarifying bill may also begin to translate into election results, slowly changing the makeup of the legislature that creates the laws and the courts that interpret them.
Texas' abortion laws are extremely unpopular, with as many as 80% of voters saying they'd like to see additional exceptions, and Democrats have tried to capitalize on that dissonance.
But so far, that strategy hasn't panned out in Texas. In 2022, Abbott and Paxton sailed to reelection, alongside the usual cadre of conservative candidates, and in 2024, even as stories emerged of women who died as a result of these bans, Republicans swept the board nationwide.
Voters can't put an issue on the ballot in Texas, the way they can in other states, so the only real path to change is through winning elections.
'It's very easy for people to get demotivated in these election cycles,' said Hayes-McMahon. 'We've gained over 100,000 supporters since Roe fell, but we have to educate all people more, have to help them understand who they are voting for and why it matters.'
While litigation and elections were failing to move the needle, the Bresnens were looking at other avenues for change. The longtime capitol lobbyists started by asking the Texas Medical Board to clarify rules for doctors, and when that didn't satisfy them, they turned to unlikely allies in the fight to restore abortion access — the Texas Legislature.
'Because of the additional media attention, we thought this might be the time to strike and at least get an inch or a yard and just take back what we can, so to speak,' Amy Bresnen said.
The Bresnens are personally supportive of abortion. But they're also realists who were clear-eyed about how much change they'd be able to push through in one session — and who they'd have to involve to get there. Sen. Bryan Hughes, chief architect of many of Texas' strictest abortion bans, carried the legislation. Anti-abortion groups were at the negotiating table; women like Miller were not.
'I hear some of these groups saying, 'Sure, this will save some lives, but…'' Amy Bresnen said, referencing pushback from abortion supporters. 'There's no 'but' for us. If this will save some lives, we have to take it.'
She said she was grateful to the women who had shared their stories and helped force the issue for legislators, and hoped to return to ask for more in future sessions. Some abortion advocates applaud the incremental gains, while others reject it as political posturing from Republicans looking to distance themselves from the worst impacts of the ban.
'I think it was all just a political ploy so they could go into the midterms and say they fixed the bans,' Miller said.
She wants to believe this is the beginning of a slow whittling away at these bans. But it's hard to see that future when she looks at the current makeup of the chambers and the work it took to get this bill through.
'I know you have to eat an elephant one bite at a time, but we're going to have to take much bigger bites,' she said. 'The current situation is just dangerous. It's not tenable.'
John Seago, the executive director of Texas Right to Life, said his group doesn't see this as the opening gambit in a larger rethinking of the abortion laws. There are some areas they'd be willing to continue to discuss, like how the laws are interpreted in cases like Miller's, where one twin is threatening the life of the other. But their primary focus is on restricting access to illegal abortions.
'There were problems that we needed to address with [SB] 31, and I was very happy with the line we were able to walk on that,' he said. 'But to make progress, to move forward, we really need to move on abortion pills.'
A major bill to crack down on abortion pills, also carried by Hughes, failed to pass this session, much to Seago's frustration.
But if he and Miller agree on one thing, it's that they don't want people getting the impression that the Texas Legislature is getting soft on abortion.
'I need people to not fall for this and think it's all fixed now,' Miller said. 'And I really need us all to get a little bit louder about having our rights taken away.'
Disclosure: Planned Parenthood has a been 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.
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