Last week, the Texas Senate voted overwhelmingly in favor (22 to 9) to accept House amendments to SB8, the most stringent anti-choice bill to come out of the Lone Star state since 2013 (that year, Texas passed HB2, a notoriously restrictive abortion law that was later struck down by the Supreme Court in 2016). It is currently with Governor Greg Abbott (R), who is expected to sign it; pending approval, the law will take effect September 1.
The bill — one of 50 measures the Texas legislature is considering this session that would restrict reproductive health services — aims to severely impede abortion access in a number of ways. It would require the burial or cremation of embryonic and fetal tissue (a previous such attempt was blocked in federal court), prohibit the use of fetal tissue for research, and ban Dilation & Evacuation (D&E), a safe and medically approved method of abortion. The D&E ban does not include exemptions for persons who became pregnant through rape or incest.
Perhaps most troubling, however, is the criminalization of abortion introduced by the bill. It specifies that a physician who “performs or procures a criminal abortion, aids or abets in the procuring of a criminal abortion, attempts to perform or procure a criminal abortion, or attempts to aid or abet the performance or procurement of a criminal abortion” could face jail time.
What’s more, in rejecting a proposed amendment that would limit who could be prosecuted under the law, the Texas legislature has effectively paved the way for anyone who helps another person get a “criminal” abortion (as defined by SB8) end up behind bars.
Representative Joe Moody (D), who introduced the rejected amendment, told the Texas Observer he fears the “poorly worded” bill would enable politically motivated prosecutors to go after any person — not just physicians — involved in the process, including the person who drove the patient to the clinic, the receptionist who booked the procedure, or even the bank teller who handed over funds to pay for it.
Under Texas’ current “law of parties,” a person connected to a crime can also be charged if he or she “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Moody told the Texas Observer that because the law of parties “casts a wide net…prosecutors have wide discretion on the charges being brought.”
It is clear that with SB8, Texas is once again trying to make abortion out of reach for millions of people. Not only does the bill effectively ban second trimester abortions and threaten providers with the possibility of criminal charges, it may prevent people from helping a patient access abortion because they fear being charged with a crime.
“If they can’t travel because I can’t help them by giving them funding, or I’m scared to because I don’t know how to interpret the law because I live in a jurisdiction where the prosecutor is anti-abortion, then these people are going to be forced to have children they don’t want,” Aimee Arrambide, who works for Fund Texas Choice and is the program manager and reproductive rights policy specialist at the Public Leadership Institute, told Newsweek.
Unsurprisingly, pro-choice advocates are up in arms over the bill’s passage, which flies in the face of last year’s Supreme Court ruling against Texas’ abominable HB2 law in Whole Woman’s Health v. Hellerstedt.
“In a complete disregard for previous court rulings, including last year’s Supreme Court decision reaffirming the right to an abortion, the Texas Legislature has passed another dangerous bill that will place an undue burden on people seeking an abortion,” Heather Busby, executive director at NARAL Pro-Choice Texas, said in a statement. “This bill does nothing to benefit health and safety and is a dangerous intrusion into the doctor-patient relationship. Politics have no place in the exam room.”
The Center for Reproductive Rights, which won the landmark Whole Woman’s Health v. Hellerstedt case, has urged Governor Abbott to veto SB8, declaring it “is unconstitutional, medically unsound, and presents an unwarranted interference into private medical decisions.”
Should Abbott lend his signature to the bill, the center has promised to pursue legal action. “Texas women deserve access to the health care that is best for them and their personal circumstances — not abortion restrictions pushed by extreme anti-abortion organizations,” said Amanda Allen, Senior State Legislative Counsel at the Center for Reproductive Rights. “The Center for Reproductive Rights vows to battle any unconstitutional measures in the courts until the rights of Texas women are respected and protected.”
Texas joins two other states (Mississippi and West Virginia) that have banned dilation and evacuation, a common abortion method for pregnancies after 12 weeks. Four other states (Alabama, Kansas, Louisiana and Oklahoma) have similarly tried to ban D&E, but their laws are temporarily enjoined pending a final decision in the courts. It remains to be seen whether Texas will be plagued by similar legal challenges.
Author: Maureen Shaw