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

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.”

Follow @KirkReportsNews

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit