Incremental Benefit vs Pandora's Box

A bill to fix Texas' abortion ban, and another bill to make it worse

Since Texas implemented its near-total abortion ban in 2021, maternal deaths have increased by 56% (compared to just 11% nationally during the same period) with devastating impacts across all racial groups: maternal mortality among white women has nearly doubled, while Black women, already at higher risk before the ban, have seen their death rates surge to 43.6 per 100,000 births. With physicians fearful to act in emergency situations, sepsis rates during second-trimester pregnancy losses have increased over 50% as women face deadly delays in miscarriage care.

Infant mortality has also skyrocketed due to the ban, according to research from Johns Hopkins University. Furthermore, over 70% of practicing OB-GYNs in Texas reporting that the ban prevents them from providing high-quality care, one in five women’s health specialists in Texas have considered leaving the state, and while applications to OB-GYN residency programs have risen nationally, they have plummeted in Texas.

The confluence of rising maternal deaths, increasing infant mortality, physician exodus, and deteriorating medical education has created an unprecedented public health emergency that threatens to set Texas women's healthcare back decades if immediate action isn't taken.

For these reasons, Texas Impact supports SB 31, the Life of the Mother Act, which would clarify that doctors should rely on their reasonable medical judgement and provide evidence-based care, even if it means terminating a pregnancy to preserve the life or health of the mother.

The bill analysis makes abundantly clear that SB 31 does nothing to expand access to abortions that are not already permitted in Texas:

S.B. 31 maintains current prohibitions of elective abortions, including the private right of action. The bill conforms Texas abortion statutes to uniformly define the situation of when a medical emergency occurs by maintaining and clarifying protections against threats to the mother's life and threats to her major bodily functions.

S.B. 31 codifies that a physician, using reasonable medical judgment, may intervene and provide timely medical care to a pregnant woman in a defined medical emergency. The bill would also protect women undergoing treatment for cancer and other diseases when the treatment may jeopardize the unborn child.

Significantly, advocates across the political spectrum support SB 31, including hard-line anti-abortion groups such as the Texas Conference of Catholic Bishops.

The Texas Medical Association, Texas Nurses Association, and other health care provider groups support the bill.

Some critics have suggested that abortion-related legislation could inadvertently revive an antiquated 1925 abortion ban, potentially enabling prosecution of those who help pregnant women access out-of-state care. Focusing on this hypothetical scenario reflects a misunderstanding of the current legal status of the 1925 law, as well as unwarranted optimism about future legal rulings related to it.

The 1925 law exists in legal limbo. There is litigation pending in federal court regarding whether the 1925 ban is in effect—even though it has never been expressly repealed by the Legislature. In 2004, a Fifth Circuit panel unanimously ruled the ban had been repealed by implication following passage of post-Roe laws that allowed but regulated abortion. In February 2023, Western District Court Judge Robert Pitman upheld this finding and placed a temporary federal injunction on the enforcement of the 1925 law post-Dobbs. The current federal litigation is pending, and given the political moment, observers expect the court will allow enforcement of the 1925 law. This precarious situation exists no matter what happens in this legislative session. Texas legislators should not sacrifice real lives now for theoretical concerns about legal strategies that may or may not succeed in the future.

The bottom line is that SB 31 will save lives, and even though we might wish the bill did a lot more to fix Texas’ abortion ban, we definitely need what the bill does.

What we definitely do NOT need is SB 2880, which would create a new Pandora’s box of confusion, suffering, and litigation even more far-reaching than the harms SB 31 now seeks to remedy.

Texas Impact strongly opposes SB 2880. This bill is intended to prevent Texans from accessing medication abortion from providers in states where it is legal, which the bill’s author refers to as “trafficking abortion pills.” SB 2880 relies heavily on the “bounty hunter” and other draconian tactics that have contributed to the crisis in pregnancy care SB 31 is needed to address. It would seem a certainty that if enacted, SB 2880 will lead to irreparable harm, including to faith communities and other community-based groups that interact with pregnant women.

Here is the author’s explanation of SB 2880:

S.B. 2880 would increase civil liability tools citizens may use against those trafficking abortion pills. S.B. 2880 would allow for lawsuits against those mailing, delivering, or trafficking abortion pills. The bill would hold manufacturers and distributors of abortion pills liable and would include market-share liability. The bill would also allow women and families to bring wrongful death and injury suits six years after being injured by abortion.

S.B. 2880 would enhance criminal penalties for abortion crimes. The bill classifies paying for or reimbursing costs associated with the abortion as a first or second degree felony, depending on the circumstance. The bill would add penalties for aiding and abetting abortions by pills, including paying for or reimbursing abortion costs. The bill would penalize the destruction or concealment of evidence related to an illegal abortion in or outside the state.

S.B. 2880 would provide more tools to target online trafficking of abortion drugs. The bill would hold those making or maintaining Internet platforms, websites, and apps accountable for facilitating or advertising abortion pill sales. The bill would prohibit financial service providers, crowdfunding platforms, and payment processors (like Paypal or Stripe) from collecting or transferring money for abortion pills. The bill would authorize the Attorney General to prosecute abortion crimes.

SB 2880 raises First Amendment concerns and concerns the bill undermines protections for survivors of domestic violence. SB 2880 would expose law-abiding Good Samaritans and community-based organizations, including congregations, to harassment and intimidation.

Texas Impact also opposes SB 33, which would prohibit local governments from funding “abortion assistance entities” that provide “childcare, or other logistical services” that could facilitate access to an abortion.