Fallout From the Lege's War on Reproductive Rights

When the Legislature called sine die in late May, Texas' reproductive health providers – still grappling with the effects of years of decimated family planning access – had only a few days to gauge the damage inflicted by the 85th regular session before Gov. Greg Abbott called a special session rife with the anti-abortion restrictions that didn't muster enough support to pass the first go-round. His call includes the revival of stalled bills to bar abortion coverage in private insurance (with no exception for rape or incest) and to prohibit city and state government from contracting with abortion clinics and affiliates, a shot directly at Austin's Downtown Planned Parent­hood clinic, leased by the city for a nominal fee.

Abbott's anti-choice wish list makes it seem as though the Legislature hadn't devised enough ways to restrict abortion access this session – but that's far from the case. Omnibus Senate Bill 8, signed into law this month, imposes a host of cruel burdens on patients and providers, including a virtual ban on abortion after as few as 12 weeks of pregnancy, and a rule forcing women to bury or cremate embryonic tissue after an abortion. Barring court intervention, SB 8 will go into effect Sept. 1.

In addition to onerous laws, the culture of sexism and misogyny ran rampant throughout the session: Dallas Republican Don Huffines would not agree that women deserve bodily autonomy as a protected right when asked by Sen. Kirk Watson, D-Austin, during a committee hearing. SB 8 author Sen. Charles Schwertner, R-George­town, literally gaveled a glass table into shattered pieces in an effort to silence a pro-choice witness, and Rep. Jessica Far­rar, D-Houston, saw backlash from male colleagues for authoring a satirical bill aimed at restricting men's health care and penalizing male masturbation. Then there was resident blowhard Rep. Jonathan Stickland, R-Bedford, who implored a female parliamentarian to "smile for us" on the House floor, a classic sexist request.

Pretense No More

Of all the anti-choice bills passed in statehouses around the country this year, SB 8 stands as the "largest in scope," said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive health policy organization. The sweeping abortion law bans an already prohibited procedure (D&X, or intact dilation and extraction); bars the donation of embryonic or fetal tissue for medical research; requires monthly electronic reporting by a physician (a possible avenue for anti-choice activists to hound providers); and, mimicking a health department rule currently blocked by a federal judge, forces providers to bury embryonic and fetal tissue. Insidiously, SB 8 also outlaws dilation and evacuation (D&E) abortion, even in cases of rape or incest. D&E is the most commonly used procedure in the second trimester, which begins at 12-14 weeks.

"The state is banning the method we know is safest for patients," charged Dr. Bhavik Kumar, medical director at Whole Woman's Health clinics, including its Austin flagship center. While conservative legislators with no medical background claimed other options existed in lieu of D&E (like labor induction with medication), Kumar says those procedures can add more risk, expense, and pain for the patient. He predicts low-income women, minors, and women of color will be disproportionately affected and pushed later into pregnancy. "The law forces doctors to add additional risk that isn't necessary and ultimately puts patients in harm's way," Kumar said.

Courts have blocked D&E bans in four states (Oklahoma, Kansas, Alabama, and Louis­iana), and the fetal burial rule is facing litigation in Louisiana and got struck down in Indiana. But those precedents failed to stop Texas legislators, who apparently don't mind wasting taxpayer money on costly litigation. Attorneys with the Center for Reproductive Rights have strongly hinted they'd be ready to hit back against SB 8 in the courts. "It's not normal to have a court find a law unconstitutional and have legislators go ahead and replicate the exact same law. It doesn't make any sense – but I don't think it's legal precedent motivating these politicians," said Nash.

Indeed, if precedent were any motivation, lawmakers would be bound to the resounding U.S. Supreme Court victory won by the Texas abortion providers who challenged last session's HB 2 (similar in breadth to SB 8), which forces states enacting abortion restrictions to show evidence of their health benefit to women. Nash noted that "by passing SB 8 and the D&E ban, the [Texas] Legislature is ignoring the Whole Woman's ruling – there is no evidence that D&E is detrimental to women's health or safety."

However, in a departure from their usual thinly veiled pretense of protecting women's health, Republicans this session scrapped that disingenuous claim altogether, making it "perfectly clear they're no longer concerned with women's health," said Heather Busby, executive director of NARAL Pro-Choice Texas. "They've dropped the smoke and mirrors, almost admitting they lied before. Now, they're not even pretending it's about women's safety this time. It's just about the 'sanctity of life.'"

More Damage

There's no better proof of the Legislature's apathy toward women's health than its disregard for Texas' alarming maternal mortality rate, the highest in the developed world (see "Texas Maternal Mortality Rate Soars," Sept. 9, 2016). "The maternal death numbers should have horrified everybody and should have been a huge focus this session, but it was barely given any attention at all," said Rep. Donna Howard, D-Austin. Critical legislation that would have extended the life of the state task force studying the issue and prolonged Medicaid coverage to new mothers, fell by the wayside as legislators burned time pushing anti-choice regulations. While Abbott did revive the maternal mortality and morbidity task force extension measure on his special session call (though there's still no guarantee it'll pass), he also callously vetoed SB 790, that would have continued, for two more years, the Women's Health Advis­ory Committee, which could address those dire figures and ensure tattered family planning programs stay afloat. Howard called the veto a "disgraceful" action that she believes will jeopardize lives. "We say we want to help women who choose to have their babies, but we don't even give them the health care they need so they don't die after childbirth," said Howard. "That is disturbing to me and clearly a sign of misplaced priorities."

While eroding access to abortion, lawmakers simultaneously prevented wider access to contraception and aid for young mothers. Howard, for instance, offered a handful of measures to prevent or mitigate unplanned teen pregnancies and to let school districts use certain funds to finance child care for teenage mothers – but many failed to even reach a committee hearing.

And the Lege held fast to its ideological exile of Planned Parenthood patients from breast and cervical cancer screenings and the preventive Healthy Texas Women in the 2018-19 budget, doubling down by attaching a nail-in-the-coffin budget rider that would bar the provider from receiving even minimal dollars from any state agency. On the other hand, the Lege infused the Alternatives to Abortion program, comprised of anti-choice, religious, nonmedical crisis pregnancy centers tasked with persuading women against abortion, with $18.3 million over two years plus an additional $20 million – diverted from vital air quality funding – if the Health and Human Ser­vices Commission determines the program needs a boost. At the same time, they quietly killed local Rep. Gina Hinojosa's $3 million plan to rehabilitate survivors of sex trafficking.

"Texas is really ground zero nationally for both abortion restrictions and defunding family planning in a way a number of states are just not," said Nash. "Texas stands at the center of this kind of strategy, and since the Legislature hasn't closed the chapter on women's health in 2017 yet, we're still waiting on the full impact."