The Texas legislature is contemplating a invoice that purportedly goals to make clear the state’s near-total abortion ban. Texas legislation at present bans abortion at any time throughout being pregnant until the being pregnant locations the pregnant individual “prone to dying or poses a critical threat of considerable impairment of main bodily operate.” Violations of the legislation may end up in a felony conviction, as much as 99 years in jail, and a minimum of $100,000 in civil penalties.
The medical emergency exceptions within the legal guidelines of Texas and different states with comparable abortion bans have been roundly criticized by sufferers, well being care professionals, organizations, and authorized students as obscure and too slender. Because of this, some suppliers really feel pressured to delay medically crucial care till a affected person is on the “brink of dying.” In apply, the present Texas legislation codifies cruelty and forces well being care professionals to violate their obligations to “do no hurt” and act in the perfect pursuits of their sufferers. As this text explains, nonetheless, the invoice proposed to allegedly “repair” these points not solely falls quick, however creates new and much more regarding issues, such because the potential for pregnant individuals to be criminalized.
Final yr, the Texas Supreme Courtroom dominated that the exceptions within the present legislation weren’t too obscure. And whereas the Texas Medical Board issued steering that sought to make clear the abortion ban, the Board refused to offer a listing of particular medical situations that might fall beneath the exception. In obvious response to rising criticism, concern, and proof that the legislation was harming Texas sufferers, Republican state Senator Bryan Hughes launched SB 31, the “Lifetime of the Mom Act.” The laws has been misleadingly depicted as “increase[ing] protections in emergencies,” “giv[ing] docs extra leeway to finish pregnancies throughout medical emergencies,” and “clear[ing] confusion” about when the exceptions apply.
The seemingly impression of the laws, if enacted, is way much less promising. First, the invoice doesn’t go far sufficient to guard ladies going through pregnancy-related medical emergencies. For instance, it doesn’t add exceptions or in any other case increase the legislation to offer different necessary exceptions, akin to for victims of rape or incest. A second and maybe extra necessary (but woefully underdiscussed) consequence of this invoice is its potential to resurrect a century-old abortion legislation that might truly broaden the state’s means to punish those that help pregnant individuals in search of abortions and probably the pregnant individuals themselves. This legislation was on the coronary heart of the choice in Roe v. Wade, wherein the U.S. Supreme Courtroom struck down the legislation and established the constitutional proper to abortion.
Beneath Texas’s pre-Roe legislation, along with criminalizing the efficiency of an abortion on a pregnant individual, it was additionally a criminal offense for anybody to “furnish the means for procuring an abortion.” This language meant that anybody who aids a pregnant individual in acquiring an abortion, akin to by offering funds, transportation, or different help, may very well be topic to felony legal responsibility. The invoice additionally didn’t embody language that explicitly exempts the one who has the abortion from going through felony fees, necessary language that each one present abortion legal guidelines at present embody, though numerous states have began to think about legal guidelines that might punish pregnant individuals.
After the Supreme Courtroom overturned Roe in 2022, Texas Legal professional Normal Ken Paxton tried to implement the pre-Roe ban. That try was blocked by a federal choose in 2023, who concluded that the pre-Roe ban had been “repealed by implication,” which happens when a brand new legislation conflicts with an older legislation, successfully canceling out or “repealing” the previous legislation with out explicitly stating so. However SB 31 amends the pre-Roe legislation, which opens the door for Paxton and others to argue that amending the legislation negates the argument that the legislation has been “repealed by implication.”
Why has this gotten so little consideration? Keen to achieve bipartisan assist, Texas Republicans portrayed this invoice as an act of fine religion and as a method to guard the lives of pregnant individuals. And Democrats, though essential that the invoice didn’t go far sufficient, may be glad to do one thing, something to ease the state’s excessive abortions restrictions. Furthermore, the textual content of the legislation, on its face, doesn’t clarify that it could resurrect the pre-Roe legislation, making the complete penalties of passing the invoice straightforward to overlook. However make no mistake, this invoice may very well be tightening abortion controls, not empowering physicians or defending sufferers.
Make no mistake, this invoice may very well be tightening abortion controls, not empowering physicians or defending sufferers.
And the issues with SB 31 don’t finish there. One other controversial side of the laws is that it might require Texas physicians to take a state-mandated training course on the Texas abortion legislation. Whereas this may increasingly appear to be a constructive improvement, the legislation locations the event of the training within the palms of the State Bar of Texas, yet one more alternative for legal professionals to infiltrate the bedside and inject a extra conservative viewpoint to affected person care. In reality, such “med ed” payments are routinely supported by anti-abortion organizations like Susan B. Anthony Professional-Life America.
Sufferers, well being care professionals, and reproductive justice advocates shouldn’t be fooled by SB 31. Not solely is the invoice removed from a panacea for pregnant individuals going through medical emergencies in Texas, it could truly do extra hurt than good. Tragically, ladies like Josseli Barnica and Nevaeh Crain have already paid the worth of Texas’s harmful abortion legal guidelines with their lives. What number of extra should die or endure earlier than the Texas legislature enacts significant change?
In regards to the creator
Allison M. Whelan, JD, MA Bioethics, is an assistant professor at Georgia State Faculty of Regulation, and an affiliate on the Middle for Bioethics at Harvard Medical College.