Texas abortion foes see opportunity
Tougher laws eyed after Kennedy; justice was a key vote on the issue.
Justice Anthony Kennedy’s decision to retire from the U.S. Supreme Court is a game changer for Texas abortion opponents, providing motivation to enact tougher regulations when the Legislature meets in January and inspiring hope that current legal fights over Texas restrictions will break their way.
Kennedy was a swing vote who tended to side with the court’s liberal wing on abortion issues, providing crucial support for rulings that preserved the right to abortion as well as a 2016 decision striking down Texas regulations that would have closed most abortion clinics in the state.
Kennedy’s departure — along with President Donald Trump’s standing promise to nominate judges who oppose abortion — sparked almost euphoric speculation among abortion opponents about how best to attack Roe v. Wade, the 1973 ruling that established a right to abortion.
“Justice Kennedy’s retirement is a phenomenal opportunity for the pro-life movement,” said John Seago, legislative director for Texas Right to Life.
“Some legislators immediately reached out and said, ‘We can do
whatever we want to now, we can ban abortions.’ Our response is that is not how the Supreme Court works,” Seago said. “There is no question we want to see Roe v. Wade overturned, but the debate at the Capitol and among pro-lifers is what’s the best strategy.”
Right to Life will recommend bills “that will save lives” while at the same time serving as vehicles to attack the pillars on which the legal right to abortion was built, he said.
Toward that goal, one priority in the 2019 legislative session will be a bill dubbed the Preborn Nondiscrimination Act, which would ban abortions because of fetal abnormalities, sex or race, Seago said.
Other efforts expected
State Rep. Matt Krause, R-Fort Worth, said he and fellow abortion opponents have discussed pursuing a “heartbeat bill” like one recently passed in Iowa but temporarily blocked by a state judge. Such a law would ban abortions once a fetal heartbeat can be detected at about the sixth or seventh week of pregnancy, before many women might know they are pregnant.
“There was going to be strong pro-life legislation filed no matter what, but certainly with a new justice who takes a more conservative approach ... it gives you an advantage that you didn’t have before to pass stronger pro-life legislation,” Krause said.
Joe Pojman, head of Texas Alliance for Life, sees an opportunity to re-enact the restrictions that Kennedy helped strike down in 2016 — requiring all abortions to be done in hospital-like centers, and requiring abortion doctors to have admitting privileges in a nearby hospital.
Difficulty meeting those requirements would have left fewer than 10 abortion clinics open in Texas. More important for future legal challenges, the 2016 ruling established a harder-to-meet legal burden that requires states to show that regulations have benefits that outweigh the difficulties placed on women seeking an abortion.
Pojman also sees a chance to ban cities, counties and hospital districts from signing contracts or providing tax money to abortion providers such as Planned Parenthood. Efforts to enact such a ban fell short in the 2017 legislative session.
State Rep. Briscoe Cain, R-Deer Park, a co-author of a 2017 bill to criminalize abortion — which died in committee without action — expects a similar effort in the 2019 session.
Blake Rocap, legislative counsel for NARAL ProChoice Texas, said re-energized abortion opponents might find it harder than expected to substantially limit abortion rights.
“They have to get those bills through the process,” he said. “They may find less support for these totally extreme bills than they hope.”
Kennedy’s retirement on July 31, and its potential impact on abortion rights, “makes the election in November so important,” Rocap said. “The way to stop these bills is to vote against folks who support this sort of legislation.”
Court cases affected
For years, legislation to limit abortions, and lawsuits challenging those restrictions, were written with Kennedy in mind.
Abortion opponents will be watching to see if Chief Justice John Roberts or another Supreme Court justice takes on the role of swing vote, said Seago with Texas Right to Life.
“Justice Kennedy was the single barrier to life-saving legislation in the past, and now the equation for the movement changes to looking for who the next audience for pro-life legislation is,” Seago said. “Who exactly is going to be the deciding factor on what is too aggressive when it comes to prolife legislation?”
Pending legal challenges to Texas regulations could provide that answer in three cases, including two at the 5th U.S. Circuit Court of Appeals, which is one step below the Supreme Court:
■ Texas has asked the 5th Circuit Court to let state officials remove Planned Parenthood from Medicaid. A federal judge in Austin blocked the effort in February 2017, saying Texas officials improperly tried to punish the organization by relying on unsubstantiated allegations in an undercover video shot by abortion opponents.
■ Texas also turned to the 5th Circuit Court to reinstate a ban on the most common form of second-trimester abortions. The 2017 law prohibited “dismemberment abortions” unless doctors first employed an added procedure to ensure fetal demise, but a federal judge blocked the law in November 2017, saying it required doctors to use risky, unproven and medically unnecessary procedures on women.
■ Lawyers for Texas will return to federal court in mid-July to defend a 2017 law requiring that fetal remains be cremated or buried. The loser in that battle will appeal to the 5th Circuit Court.
Texas Right to Life, which helped write the “dismemberment abortion” bill, sees an opportunity for a strong conservative majority on the Supreme Court to adopt new criteria for acceptable abortion regulations, “ultimately with the goal that they give more leeway to the states,” Seago said.
“We wrote that bill for Justice Kennedy,” he said. “Now the bar is lowered, and it would be foolish to let this opportunity pass.” ‘Certainly with a new justice who takes a more conservative approach ... it gives you an advantage.’ State Rep. Matt Krause R-Fort Worth