Wrenching Issues Face First Dobbs-Era Texas Legislature

State Rep. Donna Howard speaks at the Don't Mess With Texas' Abortions rally on May 29, 2021 (Photo by Jana Birchum)

As Texas' "trigger law" took effect last week, piling more penalties on abortion providers, conservative and progressive leaders across the state celebrated and mourned, respectively. But both looked ahead to the upcoming 88th Texas Legis­lat­ure, which will amend the state's relationship with pregnant people, one way or another, once it's elected in November and convenes in January.

Perhaps the most urgent issue facing lawmakers in Dobbs-era Texas will be deciding just how close to the brink of death a pregnant person must come to justify a legal abortion. They'll also advance or stall legislation that could extend health care coverage to mothers a year after birth, determine what kind of financial and social support Texans receive postpartum, and weigh whether to pursue punishments of Texas residents and corporations who seek treatments out of state that are illegal in this one.

Because current abortion-blocking statutes only make clear exceptions to save the life of a pregnant person (there is also murkier language about preventing "substantial impairment"), doctors across the state are unsure exactly how deadly a pregnancy complication needs to become to qualify an abortion as lifesaving care. In recent weeks, Planned Parent­hood has received many calls from doctors who felt their hands were tied, said Dyana Limon-Mercado, executive director of Planned Parenthood Texas Votes. They report medical situations where "it's not life-threatening today but it will be in several days."

The Biden administration tried to clear up some of the providers' confusion in July with a reminder about the federal Emer­gen­cy Medical Treatment and Active Labor Act (EMTALA). This law requires American doctors to medically stabilize patients in severe pain or who are at risk of serious impairment or dysfunction to any part of their body. Texas Attorney General Ken Pax­ton's lawsuit over that guidance, though, claimed that law would "transform every emergency room in the country into a walk-in abortion clinic" and force Texas doctors to risk losing their licenses.

John Seago, president of Texas Right to Life, says House Bill 15 from 2017 (which made transvaginal sonograms a requirement for obtaining an abortion) should have made it clear for doctors: That legislation defined a medical emergency as an ailment that presents "serious risk of substantial impairment of a major bodily function." Seago said the legislation his organization has worked to advance is not meant to block abortions in response to ectopic pregnancies, for instance.

State Rep. Donna Howard, D-Austin, said HB 15's language is not clarifying for doctors – based on the confusion providers are reporting to the Texas Women's Health Caucus, which she chairs. "It's outrageous that [Paxton's lawsuit] is being filed to potentially threaten medical intervention when someone presents at an emergency room with a complication. ... It's basically saying, 'We want these physicians to continue to be confused and we don't care if women die as a result.'"

Howard said that a new, clear definition of a medical emergency must arise from consultation with doctors. She'll also be pushing to legalize other exceptions to the state's abortion bans as well – for pregnant children and victims of assault. "More than likely there will be some kind of omnibus cleanup bill, but [if that doesn't advance] individual legislation could take on different aspects of what that would look like."

People as ideologically far apart on abortion as Seago and Howard agree on at least one measure, though: extending health care coverage for pregnant and postpartum Texans. Seago said making Texas a truly pro-life state means supporting moms with medical and other expenses. To Howard, these stated priorities coming from pro-lifers seem hollow. "I wanna know where they were before this," she said. "If they were pro-life before this, why did it take this legislation to say, 'Now we're trying to support women'?" (Seago said his movement's primary focus had to be banning abortion, and now that that is accomplished they can pivot to legislation supporting babies and their parents.) Howard sees hope for bipartisan momentum, but she sees 12 months of coverage after birth as only a start. "People need health care before they get pregnant so they'll be healthy when they get pregnant." And because Texans have to be pregnant to qualify for Medicaid, by the time they confirm their pregnancy and their paperwork is processed, they've gone weeks into gestation without medical coverage.

Meanwhile, Republicans still want to see stricter enforcement of the state's laws. Texas Right to Life is pushing for restrictions on traveling out of state for an abortion and punishment for organizations that fund that travel. And for progressive counties such as Travis where district attorneys have committed not to prosecute abortion-related cases, anti-abortion advocates want "avenues to go around the D.A.," such as allowing the A.G.'s Office to prosecute cases that D.A.s refuse to.

What Seago said they can not yet support is legislation that would criminalize mothers for receiving abortions (rather than penalizing providers, as current laws do). "It's a really important debate and it's not one I think the Legislature's prepared to have," he says, "about what level of responsibility is on the woman versus those that have caused the circumstance she's in." He said discussions of abortion-ban enforcement have lacked the nuance that discussions of other crimes, such as prostitution, seem to have. "How do we respond to that woman? We think she needs support, protection, in some circumstances rehab options – that kind of public policy sensitivity."

Conservatives and progressives will both be looking at social safety net programs, too. Howard said anti-abortion pregnancy centers still need many more metrics in place to hold them accountable. "As chair of the Texas Women's Health Caucus, a priority on the agenda is to hold our colleagues' feet to the fire. If you say you're pro-life, you have to support women and babies."