Can Texas' abortion ban be fixed? Skeptics say an effort to "clarify" the law could make it worse

Yahoo

23-04-2025

When Ashley Brandt and her husband learned she was pregnant with identical twin girls in 2022, she was ecstatic. But one twin's diagnosis with acrania — a rare, fatal congenital disorder characterized by the full or partial absence of cranial bones — sent Brandt's world into a grief-stricken tailspin. It also meant that the lives of both her and her viable child were now at risk.
Brandt and her twins' circumstances didn't qualify for an exception under Texas' Senate Bill 8 abortion ban, which forced her to flee the state to access care. With the help of family and friends, Brandt would travel to Colorado for an abortion just two weeks before the Supreme Court's Dobbs decision, which she said left her terrified that her loved ones or medical team could face consequences.
"I look at my happy, healthy, 2 1/2-year-old daughter, and that enrages me," the Zurawski v. Texas plaintiff told reporters during a virtual press conference earlier this month. "From the moment she was born, I was immediately aware that the state in which my family and my husband's family has resided since the 1800s saw her and I as nothing more than collateral damage."
Texas state lawmakers have united around two, bipartisan bills that seek to clarify the exceptions to the state's strict abortion ban and unify it's scattershot abortion laws. Since the Supreme Court overturned Roe v. Wade in 2022, at least three women have died in Texas as a result of its abortion ban, which outlaws abortion at all stages of pregnancy and criminalizes providing an abortion with penalties including life in prison, $100,000-minimum fines and medical license revocation. With the medical exceptions better defined, lawmakers hope to ease physicians' hesitations in performing life-saving abortions and better protect the lives of pregnant people. But Brandt and other abortion access advocates say the bills, as written, won't go far enough.
"SB 8 falsely implied that there would be medical exceptions by using vague language, and the average Texan doesn't realize the false implication until someone they love is in that impossible situation," Brandt said. "It should be no surprise that HB 44 does absolutely nothing to help Texans in situations similar to mine, but it further hurts situations with the looming threat of prosecution."
Texas' Senate Bill 31 and its identical companion bill, House Bill 44, would clarify the types of medical emergencies that qualify as exceptions to the state's abortion ban, activities that don't constitute "aiding and abetting," and definitions of terms like "ectopic pregnancy." It strikes "life-threatening" from the existing law's language, allowing for a licensed physician to perform an abortion, "in the exercise of reasonable medical judgement," for a person with a pregnancy-related physical condition that puts them at "risk of death or poses a serious risk of substantial impairment of a major bodily function."
It also adds language mandating the physician to provide the abortion in a manner that "provides the best opportunity for survival of an unborn child" while establishing that the law does not require providers "delay, alter or withhold medical treatment" if it would result in serious physical impairment or death.
Called the "Life of the Mother Act," both bills are still pending. Spokespeople for state Sen. Bryan Hughes and state Rep. Charlie Geren, Republicans and primary authors of the bills, did not respond to requests for comment.
In a state Senate committee hearing in March, Hughes said that the proposed legislation would "remove any excuse" that doctors and hospitals may present regarding whether they can legally provide abortion care to pregnant patients.
'We want to love them both. There's a mom and there's a baby, and we want to love and respect and protect them both,' Hughes said during a Senate Committee on State Affairs hearing. 'That's really what this is about.'
Geren stated that the goal of the bill would be to prevent deaths and serious impairments due to pregnancy-related medical emergencies when he introduced the bill earlier this month.
'It's simple: We do not want women to die from medical emergencies during their pregnancies,' Geren said during an April 7 House Committee on Public Health hearing. 'We don't want women's lives to be destroyed because their bodies have been seriously impaired by medical emergencies during their pregnancies.'
But the Zurawski v. Texas plaintiffs argue that the bills do next to nothing to protect the lives of pregnant people who face life-threatening pregnancy complications or fatal fetal anomalies as proponents posit and threaten further harm to pregnant patients.
"Instead of clarity, this bill normalizes it for a doctor to need legal consult to provide medical care. Instead of clarity, this bill normalizes lawyers giving doctors a training course on how to practice medicine. Where else in medicine does that occur?" said Lauren Miller, a plaintiff who faced the risk of kidney or brain damage during her pregnancy with twins, one of whom was non-viable. "How close to organ damage did I need to get before I could access the abortion that I needed?"
Of greatest concern is the chance that the bill would revive an 1850s abortion ban that penalizes anyone who "furnishes the means" for an illegal abortion, the women said. They argued that, as it stands, the bill could criminalize people and groups helping pregnant people access abortion care outside of Texas and open the abortion patient up to legal penalty because it doesn't explicitly exclude pregnant people from criminalization. Other Texas abortion laws, by contrast, do explicitly protect pregnant people from prosecution for obtaining an abortion.
The bills fail to address the "despair women face" when having to flee the state to receive abortion care, Kaitlyn Kash, another Zurawski v. Texas plaintiff, told reporters. "In fact, by opening the door to the [1857] law, these bills risk turning that darkness into a black hole, one that pushes families deeper into fear, isolation and grief."
While Texas Attorney General Ken Paxton and other anti-abortion lawyers have suggested that the 1857 law was back in effect following the fall of Roe in 2022, multiple courts have determined that the pre-Roe ban was "repealed by implication" — the most recent example being a 2023 ruling from a U.S. district judge.
Laura Portuondo, an associate professor of constitutional law with expertise in reproductive rights at the University of Houston Law Center, told Salon that the new bill, if enacted as currently written, would only have a marginal benefit for pregnant people in the state.
"It will make it easier to get an abortion, say, for an ectopic pregnancy, and I do think eliminating this 'life-threatening physical condition' language could help at the margins," Portuondo said in a phone interview. "The Texas Medical Board is behind this, and they seem to think that this will create more certainty. I will say I'm not totally convinced that that's true."
As written, the bill still contains a number of ambiguities that don't adequately clarify the requirements to warrant an exception, she said. A "serious risk of substantial impairment" doesn't convey what level of impairment is "serious enough" to qualify for an exception, while "reasonable medical judgment" creates more room for the state to challenge physicians' decision-making in abortion patients' cases.
"That kind of vagueness continues to be a problem because there are such severe penalties," she said. "Really, when you have such severe penalties — lifetime in prison, hundreds of thousands of dollars in fines, loss of a medical license — you need a really, really clear law, and this still doesn't get us there."
Elizabeth Sepper, a University of Texas law professor who specializes in health law, said that even though lawmakers hope the bill will ease physicians' concerns, as written, it doesn't change the law in "any significant way" and mostly reiterates the precedent the Texas Supreme Court has already set. Whether the bill would even have its intended effect is also unclear, she said in a phone interview.
"That's the million-dollar question, right? Do doctors in emergency departments change what they do if this bill passes? I don't know if the answer is yes," she said. "There are physicians who are already operating to the limits of the Texas abortion bans. They're going to continue doing that. This won't change that. So to the extent we have others who misunderstand or are too afraid of criminal sanction or chilled from giving information, does this law change what they're doing? I'm not sure because I'm not sure that the technicalities of the law are what is making physicians deterred from going to the limits of the exceptions."
With Paxton demonstrating a willingness to threaten civil lawsuits or prosecution over out-of-state abortions, and former Texas Solicitor General Jonathan Mitchell seeking depositions from abortion funds, providers and alleged abortion patients, the bill doesn't appear likely to change the already hostile landscape, Sepper argued.
Instead, SB 31 and HB 44 only offer the illusion that the Texas legislature is doing something to address concerns and recognize the myriad difficulties and complications people can experience while pregnant, she said.
"The benefit of this law would be if it, in fact, accomplishes its goal," Sepper said. "It's still a draconian abortion ban; still has really, really narrow exceptions. This doesn't broaden the exception in any meaningful way."
This piece has been updated to reflect that SB 31 left committee Wednesday morning.