Texas legislators have been skipping an important item on their “Should we pass this law?” checklist lately: the step that asks “Has this law already been passed?” and “If so, did it hold up in court?”
A far-reaching new abortion bill on Gov. Greg Abbott’s desk fails this test several times over. It bans intact dilation and extraction procedures, which pro-life advocates have dubbed “partial-birth abortions.” Those are already illegal under a federal law passed a decade and a half ago. It also bans the sale of fetal tissue, another no-no under existing federal law. And the bill resurrects an existing health department requirement that abortion providers bury or cremate all fetal remains. After a state employee testified in January that fetuses would be buried in a mass grave for $2 apiece to avoid saddling women with funeral costs, a federal judge blocked that rule from taking effect.
But the part of the new bill that promises to have the most damaging effect on Texas women is on more ambiguous legal ground. If Abbott signs the bill—and, considering the fact that he’s called fetal tissue donation “the butchering of unborn babies for trade in the open market,” it would be shocking if he didn’t—Texas doctors will face felony charges if they perform a dilation and evacuation. D&Es are by far the safest and most common form of abortion performed in the second trimester, when about 11 percent of all abortions take place. D&E bans are currently in place in West Virginia and Mississippi, and the governor of Arkansas signed one into law earlier this year. Similar bans in Oklahoma, Louisiana, Kansas, and Alabama have been blocked from taking effect while advocates challenge the laws in court.
During a D&E, a doctor dilates the cervix and removes fetal tissue with forceps, a scraper, and vacuum suction, as she would if a patient experienced a miscarriage. The American College of Obstetricians and Gynecologists recommends that medical practitioners use the D&E procedure in any abortions performed after 14 weeks’ gestation. The only other options for terminating a pregnancy after that threshold are inducing premature labor or performing surgery akin to a Cesarean section—both of which are unnecessary and far more expensive and dangerous than a D&E, meaning few doctors would be willing to go there. In practice, D&E bans function as second-trimester abortion bans.
Supreme Court rulings have upheld Americans’ right to abortion care before fetal viability, around 22 to 24 weeks’ gestation, so judges are likely to find D&E bans unconstitutional. If the Texas law stands, women in Texas will face an abortion window two and a half months shorter than they should be guaranteed by law.
This is of particular concern in a state that saw nearly two dozen women’s health clinics close in recent years after legislators enacted stringent restrictions on abortion providers. Nearly a year after the Supreme Court struck down those restrictions, barely any clinics have reopened. Women in more remote areas still have to travel far and spend a great deal of money to access care, and the existing clinics are overburdened with patients. When women have to save money and wait to get an appointment, their abortions are delayed and the need for second-trimester abortions spikes. If Texas legislators wanted to reduce the need for abortions past 14 weeks’ gestation, they would have supported the recovery of women’s health providers they’d regulated out of existence. Instead, they are trying to delay women’s access to care for as long as possible, in the hopes of denying them any care at all.
