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Round Three: Will Dems Break Quorum to Stall Abortion Regs Measures?

Dems say all legal options on table to halt bad bills
Jordan Smith, 9:45am, Mon. Jul. 1, 2013
Photo by Shelley Hiam
With the second-called session starting today, thousands of protesters – like those pictured here, who rallied under the dome last week – are expected to converge on the Capitol today at noon.

When the Texas House convened last month to pass, on third reading and onto the Senate for final passage, Senate Bill 5, the omnibus abortion regulations bill, Austin Rep. Elliott Naishtat heard several colleagues discussing whether House Dems would be ready to walk out – to break quorum – in order to stop the measure from moving forward.

Among the questions before Democrats as they face today's start of a second-called special session, with passage of abortion regulations first on Gov. Rick Perry's to do list, is whether a mid-summer, out-of-state sojourn may be in the cards. "There was talk about it" on the floor last month, he said, "and there will undoubtedly be talk about it again."

That has happened before – most recently in 2003 when 53 members of the House took off for Ardmore, Okla., in an attempt to block the mid-decade redistricting effort forced onto lawmakers by then-U.S. Rep. Tom DeLay. And it worked – at least for a while. After the House Dems busted the legislation for a first-called special session Senate Dems followed suit, taking flight to New Mexico during the second-called special. Ultimately the redistricting legislation was passed, in a third-called session, but the protests of lawmakers drew widespread attention to what was happening under the dome, and renewed Texas Democratic grassroots activism.

Sen. Wendy Davis' marathon filibuster last week, cheered by thousands at the Capitol and around the country, has similarly energized activists and voters who are hoping to keep the momentum going through the second-called session that begins today at 2 pm. A rally, expected to be attended by thousands, is planned for noon today on the Capitol's south steps.

Meanwhile, pro-life groups, including the politically powerful Texas Right to Life, have condemned the actions of activists in opposition to the measures as mere "minions" of the "abortion industry," as TRL charged in an email blast last week, following up on their allegation that activists crowding the Senate chamber last week were actually paid operatives. Simultaneously, however, TRL has been using the moment to repeatedly solicit large donations from supporters. "Will the light of a city on the hill envisioned by our Founders shine as a beacon, or will the pro-abortion Occupy Stormtroopers send us into a Hobbesian jungle of anarchy where our lives are poor, nasty, brutish, and short?" reads one email, sent to TRL supporters June 28. "We need your urgent financial support to fight back these undemocratic and destructive forces."

With Republicans holding a firm majority in both chambers, Democrats have before them few options for holding back – or shutting down altogether – the forward progress of the divisive abortion regulations measure Perry told the National Right to Life conference last week that he is emboldened to pass. "The laws we will pass in the coming weeks will build [on the state's] legacy of life," he told the audience. Republican lawmakers would ban all abortion after 20 weeks, based on the notion that a fetus feels "pain" at that gestational age; would require all abortion clinics to be licensed as ambulatory surgical centers – day surgery facilities with extensive, and expensive, physical plant requirements that providers say would likely shutter 37 of the state's 42 abortion facilities; would require doctors to have hospital admitting privileges within 30 miles of each clinic where they perform abortions; would mandate a specific protocol for drug-induced, medical abortions, eliminating a doctor's ability to use the drugs for any off-label purposes. Rep. Jodie Laubenberg, R-Parker, who carried the House bill during the first special has filed a place-holder for the second-called special, though no specific language has yet been posted. No Senate companion has yet been filed – though rumor has it that Sen. Donna Campbell, R-New Braunfels, is hard working on one (Sen. Dan Patrick, R-Houston, has again filed a stand-alone measure to regulate medical abortion).

With the 30-day special-called session only getting under way today, there is plenty of time for Republicans to maneuver to pass the divisive measures – as one Capitol staffer said last week, not even Davis can talk for 30 days. But there remain other strategies to explore, said Austin Democratic Sen. Kirk Watson – though he declined to offer specifics. "I'm not going to get into strategies," he said, "but we're not going to give up the fight."

Watson and Sen. Leticia Van de Putte, D-San Antonio, said they assume that Lt. Gov. David Dewhurst will abandon the so-called "blocker bill" in place during a regular session that keeps bad bills, or extremely unpopular ones, at bay by requiring a two-thirds vote of the members to move a measure forward. It was the blocker bill that kept any abortion regulation from making it to the Senate floor this spring. But during the first-called session Dewhurst pulled the blocker, allowing the measure to move forward. Traditionally, the blocker bill has been pulled in a special session only when redistricting is on the call; without redistricting on the second-called agenda, the question is whether Dewhurst will follow tradition and put the rule back into place. "That's a good question," says Watson. "We beat these measures in regular session because we have rules in place to stop bad bills." The measures are still bad, Van de Putte notes, but she doubts Dewhurst would provide Democrats any ready means to derail them – again. "The reason you have a special session is" to move bad bills forward, she said.

Nonetheless, says Van de Putte, the session commencing today should have to follow other rules: "they'll have to read the bill, file it, give 24-hour notice, and we will have to have a hearing," she said. "The public will play a big role in this – people who feel we have gone too far with this legislation will need to show up [at the Capitol], and will need to testify."

But whether committee chairs will allow everyone who wants to testify to do so remains entirely unclear. House State Affairs Committee chair, Rep. Byron Cook, R-Corsicana, unceremoniously shut down a marathon committee hearing on June 20, claiming that individual testimony of Texas residents from across the state was too repetitive to keep the hearing going. Capitol sources say they have been hearing that the House committee will meet sometime this week – bumping up on one side or the other of the July 4 holiday – to consider and then pass the measure as quickly as possible. Whether public testimony will be allowed, or whether the committee will meet only to give the bill a nod forward, remains to be seen, says Austin Dem Rep. Donna Howard. "They may use the argument that they've already had testimony," she said. That would be "insulting," but not necessarily unheard of.

Indeed, taking testimony in both the House and Senate would inevitably slow the forward progression of the measure and Howard said she believes it is important that individuals have the opportunity to be heard, in full. Howard also notes that at no time in the regular or special session did either the House or Senate committee hearing the bills consider any invited testimony from any experts on the issues at hand – not from the Texas Medical Association, Texas Hospital Association, American Congress of Obstetricians and Gynecologists, nor even "from our own state agency," the Department of State Health Services. Howard said she has suggested to House Speaker Joe Straus that any House hearing include at least invited testimony from key stakeholders.

The answer to the question of why none of these groups has testified previously may be simple: Because none of the major health care organizations has come out in support of the measures. TMA, which shies away from wading into the abortion debate (in deference to the varied views of its member doctors), has nonetheless put into writing (both during the regular and special session) its concerns about the proposed regulation. "TMA is concerned this legislation sets a dangerous precedent of the legislature prescribing the details of the practice of medicine," reads a letter penned by TMA President Stephen Brotherton. "These are determinations to be made by the medical community and science, not by the legislature." ACOG has expressed similar concerns about legislative interference in the doctor-patient relationship and has come out in specific opposition to the hospital admitting requirement and to requiring clinics to adhere to "facility regulations that are more stringent for abortion than for other surgical procedures of similar low risk," reads a statement posted online in April. Indeed, in an emailed statement Dr. Lisa Hollier, chair of the Texas district of ACOG notes that the state group fears that "excessive regulation leading to clinic closures may significantly harm the health of women," she wrote. "The closure of free-standing clinics could lead to a resurgence of unsafe abortion and the complications thereof, including infection, hemorrhage, and death."

Even DSHS possesses statistics that would seem to contradict some lawmakers' insistence that additional regulations are needed to "protect" Texas women seeking abortion, says Howard. "The data they have clearly indicates that this is one of the least risky procedures that exists," she said. "It is extremely rare that there are complications; it is extremely rare that there are deaths. It is certainly less risky than live birth."

So, maybe neither committee has yet heard expert, invited testimony precisely because such testimony would contradict the notion that these sweeping and burdensome regulations are necessary? "That would be one explanation," said Howard. "The assumption is that they have a majority and can push this through, so there's no need for expert testimony."

Requiring testimony in each chamber may be one way to moderate the legislation's forward progress, but it is unlikely to do much to halt the ever-forward movement. So, might a mid-summer trip to a nearby state be the way to go? That's certainly an option, says Howard. Though, realistically, says Naishtat, he isn't sure that it would work to derail the measure completely. "I don't see how House or Senate Democrats could break quorum for the amount of time necessary to defeat the bill – it could be as much as three weeks," he said. "On the other hand, other people doubted that Sen. Wendy Davis could pull off a filibuster. So what I'm saying is, you never know." Indeed, Naishtat agrees that at this point, every option is on the table. And it would be "foolish," he said, for Republicans to "underestimate our power, our intelligence, our mastery of the rules, and our commitment to doing everything legal to prevent the passage of … anti-pro-choice bills."

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