Lege Lines: The Score
Grading the Lege on women's health, drug policy, and criminal justice
Over the next few issues, the News staff will be summarizing 83rd Session action on legislative categories we've been following since January.
Women's Health Care: Coulda Been a Lot Worse
The best news for women's health advocates in 2013 may lie in what did not pass. Indeed, although Texas Right to Life pushed hard to build on its significant success in restricting access to abortion in 2011, its progress was blocked when not a single abortion-related measure was called up for a full vote in either chamber. Key among the dead bills were Rep. Jodie Laubenberg's House Bill 2364 – the so-called "fetal pain" measure – which would have outlawed all abortion after 20 weeks. (A similar measure that passed in Arizona was struck down as unconstitutional by the 9th U.S. Circuit Court of Appeals.) Also dead on arrival was Senate Bill 537 by Sen. Robert Deuell, R-Greenville, which would have regulated abortion clinics as ambulatory surgical centers – and would likely have shuttered all but three of the state's abortion providers. Other measures that died would have restricted judicial bypass for minors seeking abortion and required parental notification for each outside speaker used in sex education classes. On the other hand, so did another that would have corrected medical misinformation contained in the "Women's Right to Know" pamphlet required to be given to women seeking abortion.
Lawmakers also sought to restore funding for family planning and basic women's health care that had been slashed from the budget in 2011 – in an explicit attempt to defund Planned Parenthood. The cuts were devastating for low-income, uninsured women, more than 127,000 of whom lost access to services. In an attempt to undo the massive damage, lawmakers have agreed to put more than $43 million back into the state's traditional family planning budget, and to add in an extra $100 million over the biennium into the state's "Primary Care Program," to serve women in need of basic health and family-planning services. Whether this will work to expand access to care, crippled by the budget decisions of 2011, remains to be seen. The PCP targets a wider population than just child-bearing-age women, and providers would be required to offer comprehensive care, which would knock out of participation the cost-effective and efficient family-planning providers. Additionally, the Department of State Health Services will need to engage in rule-writing in order to ensure those funds go to their intended target – giving anti-abortion lawmakers another opportunity to try to bend the rules to their purposes.
And speaking of second chances: The special session is currently earmarked for redistricting, but there's plenty of buzz that "social issues" – abortion, drugs, et al. – are waiting in the wings.
Drugs: Stop That Salvia!
Third time was the charm for Waco GOP Rep. Charles "Doc" Anderson's bid to add to the state's Controlled Substances Act salvia divinorum, a hallucinogenic member of the sage family. The measure makes possession of any preparation of the plant illegal. That's problematic for medical researchers who had previously been successful in letting lawmakers know that salvia is a promising plant for use in treating a number of serious illnesses, including Alzheimer's and schizophrenia. The ban passed with little opposition – 17 no votes in the House, just three in the Senate – despite the lack of any concrete evidence that the ban is actually necessary. If signed by Gov. Rick Perry, it will foreclose any Texas-based medical research with the plant.
Otherwise, on drugs it was pretty much business as usual under the Dome. Measures that would decriminalize possession of small amounts of marijuana and other drugs died, as did Austin Rep. Elliott Naishtat's perennial bid to pass the nation's most limited medical marijuana law (HB 594) – a measure not to legalize its use for seriously ill patients, but just to provide the sick with an affirmative defense to prosecution for pot possession. Elsewhere, a bid to drug test welfare applicants died in the House (after passing the Senate on a unanimous vote), but a bill to test some applicants for unemployment did pass (unanimously in the Senate, and 104-42 in the House). Ironically, a measure that would have required drug testing for state lawmakers (Sen. Eddie Lucio's SB 612) languished without ever being called for a vote.
Criminal Justice: Win Some ... Lose Some
It was a decidedly mixed bag for criminal justice reforms. There were high-profile successes – notably with passage of the Michael Morton Act (SB 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock), which codifies open-file discovery in criminal matters and is named for Morton, who wrongfully spent nearly 25 years in prison for murder, partly because of withheld evidence. (Morton's grace and persistence throughout the process was admirable.) And there were some unfortunate misses – including the untimely demise of Dallas Sen. Royce West's SB 1439, which would have required training for police evidence technicians tasked with storage and preservation of hundreds of thousands of items of evidence in criminal cases. It died on the House floor as a result of the protracted debate over drug testing for welfare recipients.
Both chambers readily approved Sen. John Whitmire's SB 825, which extends the statute of limitations for claims of prosecutorial misconduct made to the State Bar of Texas, but failed even to consider Rep. Harold Dutton's HB 328, which would have criminalized intentional prosecutorial misconduct. Lawmakers easily passed SB 1292, the measure backed by Attorney General Greg Abbott that would require DNA testing in all death penalty cases before trial, and handily endorsed SB 344, Whitmire's attempt to ensure defendants can appeal their convictions if junk or outdated science was used to convict – though whether that measure has any real teeth remains a matter of debate among criminal law practitioners.
Also of note is the passage of SB 369 (Whitmire), which would remove from the publicly accessible Sex Offender Registry details about an offender's employer. That measure has been a goal of the sex offender law reform group Texas Voices for Reason and Justice; it got a favorable hearing last year in the House, but ultimately failed to move. This time around, with the backing of the Texas Association of Business – which helped to reframe the measure as a "Business Rights Act" – ample support was there for passage. On the other hand, another measure that Texas Voices strongly opposed, HB 424, that would require group living homes – including not only halfway houses, but assisted living facilities, nursing homes, and the like – to disclose to all residents when a sex offender lives among them, also passed readily. Advocates fear the measure will make it even more difficult for elderly or disabled offenders to find a place to live.