Months before the U.S. Supreme Court eviscerated nearly 50 years of abortion rights by overturning Roe v. Wade, Texans were already living in a grim post-Roe world. Senate Bill 8 — in effect since September 2021 due to the Supreme Court’s refusal to block the measure — barred abortion care once embryonic cardiac activity is detected, typically at six weeks of pregnancy. Then considered the most restrictive abortion law in the country, SB 8 halted the overwhelming majority of care in the nation’s second most populous state. The draconian law carried no exception for rape, incest, or severe fetal abnormality.
Next came the high court’s ruling in Dobbs v. Jackson Women’s Health Organization, which struck the final blow to abortion rights in Texas by allowing a full “trigger” ban to take effect. Performing an abortion in Texas is now a felony punishable by up to life in prison. Adding to the reproductive health crisis, state officials sought to push criminal enforcement of a 1925 pre-Roe ban. Today, all 23 abortion clinics in Texas have stopped providing abortion care at any stage, the most of any state in the nation.
It may come as a surprise then that after decades of aggressive lobbying, the state’s largest and most influential anti-abortion organization, Texas Right to Life, isn’t content to sit back and celebrate. Even though they helped shut down abortion care for the state’s 7 million women of reproductive age, the group doesn’t want the public to conclude that its mission is complete.
“After Roe and after the midterms, we have even more space … to build a truly pro-life culture in this state.”
“We were concerned that people would assume the movement has accomplished everything, that our work here is done,” John Seago, president of Texas Right to Life, told The Intercept. “But we have spent the last six months articulating that even with Roe overturned, there is still a lot we need to do in Texas. Thankfully, that’s been completely well received by the Republican Party of Texas.”
Seago’s brazen sentiment underscores the insatiable appetite of the anti-abortion movement — and by extension, Republican lawmakers — to further dismantle the marginal rights that remain in a state that gutted abortion care well before Roe’s demise. As Texas lawmakers convene on January 10 for their legislative session, held once every two years, they will have an opportunity to make those efforts come to fruition. While abortion rights saw victories in red states like Kansas, Kentucky, and Montana, the November midterms in Texas only solidified the power of the Republican-dominated Legislature and emboldened conservative activists.
“After Roe and after the midterms, we have even more space in the room and more focus to build a truly pro-life culture in this state,” Seago said. “This is the first session after Roe has been overturned, so it’s really important that we take decisive action now to address all the lingering and significant challenges that remain for the movement.”
While lawmakers have until March to file bills for the 140-day session, early plans discussed among Republicans include efforts to expand the power of local district attorneys to prosecute abortion providers in counties across the state; penalize online groups that help Texans receive abortion medication; criminally punish companies that financially support out-of-state abortion travel; and other measures that would prevent patients from crossing state lines for care. Often at the forefront of modeling extreme anti-abortion measures, Texas may offer a glimpse of what other states can expect.
Before any formal lawsuit was filed over Senate Bill 8, the punitive measure sent a ripple of fear through Texas abortion clinics and the medical community. Rather than state officials enforcing the law, as is typical, SB 8 carries a novel private enforcement mechanism, empowering any individual to file a civil suit against an abortion provider or anyone who “aids or abets” care. Those who bring forth lawsuits can be awarded judgments of at least $10,000. The threat of a flood of frivolous lawsuits and legal fees forced most clinics in Texas to immediately cease abortion care last fall.
Seeing the success of the bounty-style strategy, some GOP lawmakers are hoping to employ that private enforcement scheme to prevent Texans from accessing care out of state — as outlined in a letter drafted in July — by allowing any citizen to sue someone who assists an abortion patient pay for travel. That could also apply to anyone who reimburses the costs associated with out-of-state abortions, even in states where the procedure remains legal.
While a state judge recently ruled that those who sue under SB 8 must show proof of injury, the decision did not strike down the law, preclude future suits from being filed, or halt legal action from those directly affected by the procedure. The plaintiff — a Chicago-based lawyer with no connection to the abortion patient in the case — plans to appeal, leaving the fate of the private enforcement scheme unclear and anti-abortion lawmakers likely undeterred.
“It’s no surprise that lawmakers want to use the SB 8-style private enforcement mechanism to do things like restrict patient travel,” said David Cohen, professor of law at Drexel University and author of “Obstacle Course: The Everyday Struggle to Get an Abortion in America.” “This is the danger — and the predictable outcome — of SCOTUS not stepping up early on to recognize the law is a threat to people’s rights.”
Whether a state can regulate a resident’s actions outside its borders might seem to be a clear-cut matter, but legal experts say it’s actually a gray area that could ultimately be swayed by the anti-abortion Supreme Court. And while Justice Brett Kavanaugh noted in a concurring opinion in Dobbs that patients could not be prosecuted for out-of-state abortions under the constitutional right to interstate travel, he failed to address the civil enforcement strategy or what it might mean for providers or financial supporters of abortion patients. Kavanaugh’s opinion should not “provide comfort” in addressing this “underdeveloped” legal issue, Cohen said.
“In most people’s minds, as long as you follow the law in the state you are in, you don’t have to worry too much about the laws back in your home state, like gambling in Vegas without facing any punishment,” Cohen said. “But what we think is common sense is actually not rooted in clear doctrine by the courts. Some courts around the country have allowed extraterritorial application of their laws in certain circumstances. Those loopholes could be taken advantage of here and applied to abortion.”
The potential policy could raise complicated constitutional questions including the application of extraterritorial state law, due process, and the full faith and credit clause, as well as the dormant commerce clause, which bars states from passing legislation that discriminates against or excessively burdens interstate commerce, according to Mary Ziegler, a law professor at the University of California, Davis who specializes in reproductive health. However, damage could be done before it even sees legal pushback.
“We saw the threat of litigation alone from SB 8 freeze abortion care in Texas,” Ziegler told The Intercept. “If the same strategy is applied to out-of-state travel, it could prevent patients from leaving the state and could cause doctors in other states to feel exposed and liable to lawsuits.”
Limitations on travel would devastate Texans seeking abortions, who are completely dependent on out-of-state care. After SB 8 went into effect, nearly 1,400 residents were fleeing Texas for the procedure each month, according to the Texas Policy Evaluation Project. That figure has likely increased since the state’s trigger law came into play. Research from the Guttmacher Institute shows that Texans are not just traveling to neighboring states, but also making long treks to the coasts, as surrounding clinics experience wait times due to an influx of patients. This is, of course, only if Texas residents are able to secure the resources — including travel and lodging, child care, and days off work or school — to make the often costly and time-consuming trip. Many have not been able to obtain care.
“We need to remember during any conversation about restricting interstate travel that so many Texans already do not have the ability to go to another state for care today, especially undocumented immigrants, young people, low-income residents, and Black and brown Texans, who take the biggest hit when it comes to abortion bans,” stressed Yaneth Flores, public policy director with the reproductive rights organization Avow Texas. “Further limitations on travel will be unbelievably harmful and end up costing lives.”
Abortion rights demonstrators listen to speakers during a march in Austin, Texas, on Oct. 8, 2022.
Photo: Montinique Monroe/Bloomberg via Getty Images
A group of Texas Republicans, many of whom are part of the ultraconservative Freedom Caucus, have already set their sights on companies that have expressed support for patient travel. In May, the contingent of Republicans threatened Lyft CEO Logan Green with “swift and decisive action” if the ridesharing company failed to rescind its policy to pay for the travel expenses of Texas abortion patients. They similarly threatened local law firm Sidley Austin with criminal prosecution and the disbarment of its partners for its pledge to reimburse employees for “abortion-related travel and, if necessary, related legal-defense expenses.”
The letters were a preview of potential legislative plans: Fourteen GOP lawmakers have vowed to introduce bills in the coming session that would ban corporations from conducting business in Texas if they offer to pay for abortions in states where the procedure is legal. Lawmakers have promised to “impose additional civil and felony criminal sanctions” on executives whose companies provide employees with abortion-related financial support. Republicans also hope to allow Texas shareholders of publicly traded companies to sue executives for paying for abortion care. While these aggressive measures remain to be filed, a bill that would eliminate tax breaks for companies that assist with abortion travel costs and another that would prohibit governmental entities from helping with logistical support have already been introduced.
“The intimidation has chilled helping professionals from providing counseling, financial, logistical, and even informational assistance.”
Texas abortion funds that assist low-income Texans with out-of-state care have battled intense intimidation by the same lawmakers. Fearing prosecution, they were forced to halt all operations following the state’s trigger law as well as threats to enforce the 1920s-era statute, which punishes anyone who “furnishes the means” for abortion. (The state Supreme Court ruled that Texas can enforce the century-old law, albeit through civil, not criminal, action, contributing to a confusing patchwork of abortion laws and punishments.) Hoping to gain legal protection, groups including the Lilith Fund and Jane’s Due Process filed a lawsuit against the state in August. After fleeing his home to avoid a subpoena to testify in federal court, Attorney General Ken Paxton is now being allowed to dodge questioning thanks to a ruling from the 5th U.S. Circuit Court of Appeals. “The threats have been repeated and far-ranging,” the suit reads, “and the intimidation has chilled helping professionals from providing counseling, financial, logistical, and even informational assistance to pregnant Texans who may need to access abortion care outside of the state.”
Seago’s organization isn’t interested in restricting travel so much as extending SB 8’s “sue thy neighbor” provision to abortion prior to six weeks, as well as telehealth providers on websites that help connect Texans with abortion medication, like the Europe-based nonprofit Aid Access. Requests to the abortion mail delivery service from Texans skyrocketed nearly 1,200 percent after SB 8 went into effect, according to a study published in the Journal of the American Medical Association. Under state law, providers are criminally barred from sending medication abortion through the mail, but that has been difficult to enforce. “We are going to ask, ‘What tools does the state legislature have to block access to or shut down these illegal websites?’” Seago said.
Freedom Caucus member state Rep. Matt Shaheen has already filed a string of bills seeking to stymie access to medication abortion by requiring, among other things, that out-of-state physicians who provide telehealth services to Texans register with state agencies and comply with all Texas laws.
Empowering District Attorneys
Amid the unraveling of abortion rights, five Texas-based district attorneys — among nearly 90 DAs and attorneys general across the country — have vowed to not prosecute abortion-related crimes, calling the criminalization of abortion care “a mockery of justice.” Bolstering the show of resistance, city councils in Texas, including in Austin and Dallas, have passed local resolutions directing their police departments to “deprioritize” investigations into criminal offenses related to abortion and refrain from surveillance of abortion care.
While Texas Right to Life and the Freedom Caucus differ on some anti-abortion priorities, they both plan to push back on those measures by seeking to empower district attorneys throughout the state to prosecute abortion-related crimes in other jurisdictions when the local district attorney fails or refuses to do so. The plan finds a strong ally in Paxton, who has expressed his eager support for prosecuting abortion providers.
Democrats and abortion advocates are hopeful that such legislation wouldn’t survive, pointing out that the Texas Constitution and rulings by the Court of Criminal Appeals, the highest court in the state for criminal cases, make clear that the only entity with prosecution authority in a given county is the office of the district attorney. This hasn’t deterred anti-abortion activists like Seago, who say that circumventing the problem will simply take some strategic bill-crafting.
“There is some creative thinking going on right now to work around DA enforcement,” Seago said. “That includes possibly granting the state attorney general more power, like allowing him to bring criminal charges at the county level and making it easier to recall local DAs.”
An Uphill Battle
Meanwhile, Democratic lawmakers are working to mitigate some of the damage by introducing measures that would add exceptions to the state’s abortion ban for survivors of rape; repeal the 1925 abortion statute and ensure that patients are not prosecuted; and put a constitutional amendment protecting abortion directly on the ballot. The proposed ballot measure requires approval from the GOP-controlled Legislature, likely dooming it from the start despite the fact that polls show the majority of Texas voters support abortion in “all or most cases.”
Democrats say they feel like they are flying blind entering the next legislative session. A letter they sent to Paxton in October requesting clarification on civil and criminal laws around abortion, including assistance with travel expenses, was met with no response. The AG’s office claims this is due to pending litigation; the lawmakers’ questions, however, were not associated with any current suit. Democrats believe the AG’s intent is to leave things purposefully murky.
“There is a strong sense of disillusionment from pro-choice activists here that the system has failed.”
“As Texans are faced with potential increased liability and criminalization when it comes to abortion, our attorney general — as he has done time and time again due to ideology — is obstructing our ability to get much needed clarity and guidance on what is legal today and what is not,” state Rep. Donna Howard, chair of the Texas Women’s Health Caucus, told The Intercept. “It’s incredibly frustrating as we gear up to pass laws next year.”
Howard and others hope both parties use this legislative session to focus on preventing unplanned pregnancies, alleviating the ongoing maternal mortality crisis, and expanding health care for mothers forced to give birth in the post-Roe landscape, rather than further decimating reproductive rights. But outnumbered by Republicans and up against the notoriously conservative 5th Circuit — which often rubber-stamps Texas abortion laws — and a staunchly anti-choice Supreme Court, the lawmakers are facing an uphill battle.
“There is this continued thread of despair and disbelief in Texas as we see anti-abortion politicians want to further destroy reproductive health care. And there is a strong sense of disillusionment from pro-choice activists here that the system has failed, and frankly I don’t blame them,” Howard said.
“While Democrats at the Capitol may not be able to reverse these laws, we are still very much committed to doing everything we can to ensure that there will still be pathways to abortion access. There is no other option — we have to keep fighting.”
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