Since the Supreme Court eliminated the constitutional right to abortion in 2022, Americans concerned with reproductive freedom have been especially concerned about access to hormonal birth control.
Though Texas has historically been on the forefront of creative efforts to limit abortion and birth control access, in the 89th legislative session, lawmakers have not filed a flurry of bills to prevent Texans from taking the pill.
One bill is a significant exception: Senate Bill 619 would allow health care providers and anyone they work with to refuse to participate in any health care service for “reasons of conscience.” It’s partly the breadth of this bill that concerns attorneys and scholars like Elizabeth Sepper and Charles Silver of UT’s School of Law.
Under the proposed law, conscientious refusals would be protected for people who deliver medicine in boxes, people who manage prescription inventory at hospitals, people who handle billing, or, as the legislation states, “any other person who furnishes or assists in the furnishing of a health care service.”
Continuing in the spirit of unlimited refusals, the bill lists contraceptives and abortion as services that a doctor or employee might refuse to provide, but it broadens the scope to “any other care or treatment rendered by a health care facility.”
The bill seems to create one limit for refusals: Providers who decide to deny a service would need to write a document ensuring “the patient is not permanently or substantially prevented from obtaining the services.” But what would a substantial barrier look like?
State Sen. Kevin Sparks, R-Midland, who filed the bill, was not available for an interview. His staff did not respond to our questions.
Silver, a self-described Libertarian-inclined health law scholar, says the inclusion of paperwork to ensure a patient is not “substantially prevented” from receiving care amounts to legislative “hand waving in the direction of saying, ‘Oh we’re not really trying to cut off access to birth control or you know, whatever.” To understand what “substantial prevention” is, Silver said, will take years of litigation, likely arising from a lawsuit after a patient dies.
Partly because federal law already prevents religious discrimination, and doctors can determine the scope of their own practice, Sepper describes medical refusal laws like SB 619 as solutions in search of a problem.
“One of the ironies here is that for physicians, at least, they have a lot of control over the scope of their practice,” she said. “So there are OB/GYNs who do not prescribe contraception, and that’s just the scope of their practice, right? They just tell patients, this is not something I do, and so they don’t do it.”
For now, it’s unclear if this bill will get a vote on the Senate floor. First, it must get the approval of a committee. It was referred to the Health and Human Services committee Feb. 3.
This article appears in February 14 • 2025.
