Another Attempt at Banning Abortion Pills Is Coming Out of Texas. The Reasoning Is Truly Twisted.
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AUSTIN, Texas—In recent weeks, those inside the Texas Statehouse have heard story after story of pregnant people getting sick at home, afraid to call a doctor or go to the hospital. Of people who traveled out of state, far from home, to get an abortion, then hurried to catch a plane back without seeing the doctor again. Of women who described feeling scared and alone self-managing their abortions at home. Of women who spiked fevers doing so but hesitated to seek follow-up care.
You might think that these stories would be an attempt to demonstrate the harm done by the state's notoriously strict abortion bans. Instead, they were told by anti-abortion activists, staff at pregnancy centers, and conservative legislators. They were speaking not to clarify the impacts of the bans—which have shuttered all clinics in Texas, driven people out of state for needed medical care, and stoked confusion and fear among medical providers, resulting in deadly delays in care—but to blame abortion pills themselves for the havoc women in the state have endured over the past several years. That's because, despite living under some of the most restrictive abortion laws in the country, thousands of Texans are still obtaining the pills via telemedicine each year. In response, Texas Republicans are now pushing a sweeping bill intended to crack down on the influx of the medication into the state. In a hearing late last month, the author in the Texas House, Republican Rep. Jeff Leach, told his colleagues that the pills 'wreak havoc on a woman's body.' Days later, Sen. Bryan Hughes, the bill's author in the upper chamber, said, 'Women are being harmed, women are being hurt by these pills,' on the Senate floor, just before a vote to pass the legislation. 'This bill protects women from abortion pills,' he said. 'The moms are victims here.'
This is all happening despite medication abortion's having been approved by the Food and Drug Administration a quarter of a century ago and repeatedly proved safe and effective in more than 100 scientific studies spanning three decades. This includes when the pills were prescribed virtually. But abortions have continued in states with bans and even increased nationwide since the Dobbs decision—thanks in large part to the mailing of pills, and the protection, through shield laws, of the doctors who provide them. As a result, anti-abortion activists in Texas and across the country have increasingly tried to frame the drugs as dangerous to pregnant people, in a new effort to restrict access to the medication that is used in most abortions in the United States. Nationally, they are pushing Congress and the Trump administration to reimpose restrictions, and ultimately pull the pills from the market, according to Politico. Last week, U.S. Health and Human Services Secretary Robert F. Kennedy Jr. said he was directing the FDA to review mifepristone, following claims by a right-wing group that the drug has a higher complication rate than previously thought, per a report released late last month—one that was not scientifically vetted and that medical experts and reproductive health advocates called 'junk science.'
Some of the nearly two dozen women who sued the state after facing pregnancy complications and denials of care under the abortion bans in Texas testified against this and other anti-abortion legislation this session, angry that lawmakers who heard their stories are still pushing measures that would have made their situations even worse. 'Just because you don't like what the pills do doesn't mean you can use fake science to say that they're unsafe,' Kaitlyn Kash, one of the plaintiffs in the case against the state, who relied on the medication following a miscarriage of a much-wanted pregnancy, told Slate. 'If you truly cared, you would create laws and solutions that allowed women access and the ability to have honest conversations with their doctor about what they want. But you've driven this as much underground as you can.'
Now, attorneys say, the legislation being pushed in Texas could limit access to abortion medication across the country and provide a road map for other conservative states to follow suit, regardless of what happens nationally.
'Texas is oftentimes a testing ground, or a way to see if certain kinds of laws get traction that are then picked up in other states,' said Kari White, a longtime reproductive health researcher in Texas and the executive and scientific director at Resound Research for Reproductive Health. After Texas passed its novel six-week abortion ban in 2021, known as Senate Bill 8, which allows private citizens to sue anyone who 'aids or abets' an abortion, states like Oklahoma and Idaho quickly followed, passing similar 'bounty hunter' laws to ban the procedure ahead of the Dobbs decision. The idea that abortion pills are unsafe 'is a narrative that is increasingly being put forth and that really is not aligned with the medical evidence around the safety of medication abortion or these medications in general when they are used in the context of other obstetrical care, like miscarriage management,' White told Slate. But if this kind of measure works in Texas, 'it very well may be that other states that are trying to curtail access to abortion might try something similar.'
For supporters of the bill, this is the intent: 'Just like we did with the Texas Heartbeat Act back in 2021, Texas will be leading other red states on how we can fight this new concerning trend,' said John Seago, the president of Texas Right to Life, a statewide anti-abortion group that helped craft the legislation, at a Senate hearing this spring.
Senate Bill 2880, dubbed the Women and Child Protection Act, is still awaiting passage by a House committee and by the full Texas House before the legislative session ends in early June. The bill builds off the bounty-hunter model from the state's six-week ban but includes civil penalties that are 10 times as high. It allows anyone to sue for $100,000 individuals or companies anywhere who distribute, manufacture, or provide abortion medication to a Texas resident. The bill would also empower people to file wrongful death lawsuits, following an effort by Seago's group to recruit men to file civil suits in response to their partners' abortions. And it would give new power to the Texas attorney general to enforce criminal abortion laws, by bringing civil lawsuits on behalf of 'unborn children,' as the bill puts it. This last move explicitly invokes the state's pre-Roe ban, known as the 1925 law, which attorneys say would open the door for the criminalization of pregnant people seeking abortions, even out of state, including in cases in which the pregnancy is a result of rape or incest or in which there is a fatal fetal anomaly. (None of these situations is an exception under current Texas law banning abortion.) 'Basically, the attorney general is standing in as though he were the father of the fetus,' said Elizabeth Sepper, a law professor at the University of Texas at Austin. 'And it does set up a posture where it's clear that the irresponsible parent, then, is the person who doesn't want to be pregnant, very early in a pregnancy.'
If S.B. 2880 does pass, it's unclear how it would play out in court, given that it includes what Sepper and other attorneys say are highly unusual interstate legal questions and apparent attempts to evade judicial review. The bill subjects attorneys who might challenge it to additional fees and prevents state courts from finding it unconstitutional. The bill notes that any state judge who does can be sued for $100,000. On top of this, according to the legislation, if someone filing suit doesn't know what specific brand of pill was involved in the illegal abortion, all manufacturers of the drugs would be liable according to their percentage of the national market share—a provision that attorneys have deemed 'bananas' and 'absolutely wild' in interviews.
The new legislation comes as lawmakers in Texas and elsewhere have done little in recent years to respond to reports of pregnant patients facing serious complications or dying due to denials of care under the abortion bans, as doctors—facing potential penalties of up to life in prison or contending with hospital systems that have tied their hands—hesitate to intervene during medical crises. People living in states with abortion bans are twice as likely to die in pregnancy, childbirth, or shortly after, according to a recent study, which found that in the first full year after Texas passed its six-week ban, maternal mortality in the state increased by 56 percent. Infant mortality, too, increased significantly after the state banned abortion. ProPublica found that sepsis rates for women hospitalized after miscarrying in the second trimester increased more than 50 percent after Texas banned abortion, and it identified three women in the state who died preventable deaths due to lack of timely miscarriage care. Dozens more have spoken publicly about nearly dying or being forced to flee the state for care when faced with medical emergencies and diagnoses of fatal fetal conditions.
A bipartisan bill also moving through the legislature that is a limited attempt to clarify when doctors can intervene in medical crises would likely not actually prevent many of these harms, according to several attorneys focused on reproductive health law. Meanwhile, White, the Texas researcher, says that S.B. 2880 would probably cause more delays in care for miscarriages and other complications. The bill's authors did not respond to a request for comment.
Multiple attorneys told Slate that the targeting of drug manufacturers could also further restrict access to the pills beyond state lines, including in cases of medical emergencies. 'It could potentially upend pretty much the entire supply chain of medication abortion, at least with respect to providing any care to Texans—and Texas is 20 percent of the reproductive population of America,' said one Texas attorney, who specializes in reproductive health care but asked not to be identified because of potential involvement in future litigation. If manufacturers, doctors, and 'helpers' fear being sued without even a requirement to prove that a specific drug was used, the attorney said, companies are 'highly likely to stop providing pills in a way that could ever reach a Texan—including, potentially, by not wanting to provide pills to out-of-state providers who are seeing Texans physically in that other state.'
If S.B. 2880 had been in effect a few years ago, Kash and her family could have been criminalized for leaving the state for an abortion following a devastating fatal fetal diagnosis in late 2021. And it could have meant more barriers to care when she miscarried during a subsequent pregnancy and ended up turning to an online pharmacy after one in Austin delayed filling her prescription. For Kash, her fear and anger that legislators are now pushing bills that could further complicate medical care for people like her is exacerbated by the fact that the law would also seek to stymie lawsuits like hers from being filed in the first place, by penalizing attorneys and judges who might argue that the law is unconstitutional. Zurawski v. Texas, which Kash signed on to, was the first suit of its kind, and it brought more public attention to the harms of the abortion bans and the ways that medical exceptions weren't working in practice, in Texas and in other states.
'Now you're saying, 'Oh, well, we're going to pass another bill to continue to make it harder for women to get health care, to potentially open the door to [the] 1925 [law], to continue to make it so manufacturers are maybe afraid to put these drugs in Texas, or pharmacies are afraid to hold them, or doctors are afraid to write the script,' ' she told Slate. ' 'But we're also going to make it so that women can't come forward and do what the plaintiffs in Zurawski did.' '
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