Wednesday, August 10, 2022 | Back issues
Courthouse News Service Courthouse News Service

Anti-abortion activists and lawmakers explore what comes next in a post-Roe Texas

Reeling from the victory that was the overturning of Roe v. Wade, Republican lawmakers and anti-abortion activists wade into where their movement should go from here.

AUSTIN, Texas (CN) — After decades of fighting to make abortion illegal in Texas, Republican lawmakers and anti-abortion activists have achieved their goal. Looking forward, members of the movement to end abortion are split between further criminalizing fellow Texans who seek the procedure out of state or reforming from within to make the Lone Star State more hospitable for pregnant people.

Three separate laws provide the legal groundwork for Texas’ current abortion restrictions. 

First is Senate Bill 8. Passed by the Republican-controlled Texas Legislature and signed into law by Republican Governor Greg Abbott last year, the bill prohibits abortion once fetal cardiac activity is detected, around six weeks of pregnancy. Since the law was passed before the U.S. Supreme Court struck down the constitutional right to abortion, the law shifted enforcement onto citizens, not the government, as a means to skirt judicial review. Citizens enforce the law through civil lawsuits against anyone who "aids and abets" an abortion in the state and can be awarded a minimum of $10,000 per suit.

The second statute is a 1925 law that outright bans abortion in the state and carries a punishment of up to five years in prison for providing the procedure. Once defunct under the precedent of Roe v. Wade, the statute was never repealed by the Texas Legislature. After a battle between abortion providers and Texas Attorney General Ken Paxton, the Texas Supreme Court ruled that the law may once again be enforced. 

Finally, the state passed a trigger law banning the procedure set to take effect on Aug. 25. Under this law, anyone found to have given an abortion faces first-degree felony charges, which carry up to life in imprisonment and a fine up to $10,000. Additionally, the law gives the attorney general the authority to bring forth civil actions against anyone found to have violated the law, which may result in a fine of no less than $100,000. 

The only exception to these laws would be in the event of a medical emergency such as an ectopic pregnancy or miscarriage.

Despite these wins for anti-abortion lawmakers, they are looking ahead toward the future of eliminating access to abortion for Texas residents.

The Texas Freedom Caucus is a group of 12 of the most conservative members of the Texas Legislature. After a Dallas law firm promised to reimburse travel expenses to people who leave the state to get an abortion, the caucus sent a letter, informing them of their plans to introduce legislation next session to punish such aid.

“It will prohibit any employer in Texas from paying for elective abortions or reimbursing abortion-related expenses—regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs,” wrote Caucus Chairman Mayes Middleton, a Republican from Galveston. “This provision will impose felony criminal sanctions on anyone who pays for these abortions to ensure that it remains enforceable against self-insured plans as a generally applicable criminal law.”

Under current state laws, an abortion must occur within the boundaries of the state for the state to seek charges against anyone who performed or helped facilitate the procedure as well as for a private citizen to bring a lawsuit under SB 8. What the Texas Freedom Caucus is proposing is to expand criminal penalties onto employers, abortion funds and family members who aid someone in getting an abortion across state lines.

As of right now, providing financial support to a Texas resident to get an abortion in another state does not violate any current laws. However, abortion funds in the state have still ceased providing direct funding out of caution.

ADVERTISEMENT

Lilith Fund is a non-profit organization that has helped people get the money needed to travel out of the state. The organization is one of many to have ceased providing funding in the foreseeable future due to threats from activists and lawmakers that they may be prosecuted under the 1925 law. The law, which makes it a crime to “furnish the means” to an abortion, has been interpreted by members of the anti-abortion movement to include abortions that occur outside of the state. 

This effort from the Texas Freedom Caucus comes as no surprise to Elizabeth Sepper, a professor of law at the University of Texas at Austin who teaches about health law and reproductive rights. 

In an interview, Sepper said that a law similar to SB 8 may be used to broaden the scope of the state's prohibition to include abortions that occur outside of the state on Texas residents. But how might such a statute work?

“We could have a new law that says helping someone secure an abortion outside of Texas is a crime if your predicate acts are in Texas,” said Sepper.

Setting the issue of out-of-state abortion aside, Sepper believes the right to contraceptives is also on the table.

“I think that the most obvious next step in a campaign to remove substantive due process rights would be the right to emergency contraceptives and that would affect contraceptives overall,” said Sepper. 

The likely reason, Sepper explains, is the opinion in Dobbs v. Jackson Women’s Health Organization, written by George W. Bush appointee Samual Alito, rests on the notion that the constitutional right to abortion is not “deeply rooted in our nation’s history and traditions.” 

“A number of conservative actors have attempted to conflate emergency contraceptive and abortion, arguing that emergency contraception terminates a pregnancy — it does not — but they have had some success,” said Sepper. “But it would be very hard to allow a ban or severe restriction on emergency contraception without concluding that contraception itself is no longer constitutionally protected.” 

While some of the most ardent conservative lawmakers are setting their sights on further criminalization, a leader within the anti-abortion movement is looking inward.

John Seago is the president of Texas Right to Life, the state’s largest anti-abortion organization, and has been working with them as an activist for 18 years. In 2021, Seago worked alongside Republican lawmakers in the Texas Legislature to craft SB 8. 

In an interview, Seago said that with the issue of abortion back in the hands of individual states, his focus has shifted to enforcing Texas laws outlawing abortion and expanding the social safety net for unexpectant parents. But as for prosecuting people for getting an abortion outside of the state, Seago does not believe that is a high priority for now.

“There are some well-intended ideas on how do we stop travel, but I do not believe that is a priority,” said Seago. “There are more clear bills that we would like to prioritize around the enforcement issues of district attorneys ignoring their duties as well as international websites that are trying to send abortion drugs directly into the state, I think those are easier targets.” 

District attorneys in Texas’ largest cities have pledged not to prosecute people for violating laws criminalizing abortion. Most recently, the Austin City Council voted unanimously to pass a collection of measures that put enforcement of the state's abortion ban at its lowest priority. Additionally, the measures restrict city funds from being used to surveil possible violations.

Seago’s solution to city officials' refusal to enforce abortion restrictions is to have the Texas Legislature give the attorney general the authority to bring lawsuits against anyone in the state accused of violating the law.

As for the people that will have no other option than to carry a pregnancy to term, Seago advocates for greater investment in the social safety net.

“We want to create an environment where abortion is not the most attractive option,” Seago explained.

To make such an environment, Seago believes the state must invest in social services and the Alternatives to Abortion Program. The program is an over-decade-old initiative through the Texas Department of Health and Human Services, to persuade people away from abortion through counseling services and providing material goods. These services are provided through non-profit organizations contracted by the state. Year after year, the legislature has allocated more funding to the program, reaching up to around $100 million in the state's latest budget.

Seago believes programs such as this are “key to creating a more pro-life Texas.” Other approaches he believes would have an impact include providing medical coverage for mothers up to a year after they give birth through Medicaid.

Similarly, Sepper raised the concern over how the state plans to care for the influx of children to come in the foreseeable future.

“Texas is not remotely prepared when it comes to maternal-fetal care to take care of an onslaught of pregnant people and infants,” said Sepper. “What we have heard so far from the Texas Legislature is all about criminalization, surveillance, and turning doctors and maybe even pregnant people into murderers. What we have not read is anything about free daycare, Medicaid expansion, programs that would keep families and children safe.”

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...