How Texas Republicans plan to keep cracking down on abortion

AUSTIN (Texas Tribune) — Abortion has been outlawed in Texas for almost three years now, but still, Texans are finding ways to terminate their pregnancies. There’s been a steady flow of pills being mailed into the state, and abortion seekers traveling out of the state, resulting in a net positive number of abortions nationally since the procedure was banned.

This flouting of the laws is a real bugaboo of anti-abortion groups and Republican elected officials. They’ve tried to get the pills removed from the market, threatened the abortion funds and individuals who help people travel out of state, sued people who helped their friends get pills and, most recently, sued a New York doctor accused of providing pills to Texans.

Now, it’s the state Legislature’s turn to take a crack at it. While most of the attention so far has been on a pair of bills that aim to clarify the existing laws as they apply to complicated pregnancies, lawmakers are also hoping to give Texas sharper tools to enforce the laws.

Sweeping crackdown on pills and funds

Senate Bill 2880 is the most aggressive attempt yet to crack down on all the ways Texans are terminating their pregnancies despite the bans. The legislation was filed by Sen. Bryan Hughes, R-Mineola, who is also carrying the clarifying bill. Rep. Jeff Leach, R-Plano, is carrying the House version of the bill, HB 5510.

The sweeping bill targets online pill providers and the tech companies that host abortion-related websites. It also would allow wrongful death lawsuits after an abortion and empower the attorney general’s office to more easily prosecute abortion offenses.

The “Woman and Child Protection Act” relies in large part on allowing private citizens to sue over violations of the law. This is the same legal framework that allowed Texas to ban nearly all abortions after about six weeks of pregnancy in 2021, evading constitutional questions by removing public enforcement.

It would also make it a felony, punishable by up to life in prison, to pay or reimburse the costs of an abortion, a direct hit on abortion funds, which help cover the costs of out-of-state abortions.

By going after the internet service providers, social media sites and search engines that power these websites, Texas could potentially undermine the entire network of pills and providers serving abortion-ban states.

“No other state has enacted effective legislation to save mothers and children from the abortion industry’s evil new business model,” Texas Right to Life, the state’s largest anti-abortion advocacy group, said in a statement. “Passing this bill would prove that Texans are not satisfied with just closing brick and mortar abortion clinics.”

Greer Donley, a reproductive health care law professor at the University of Pittsburgh, said the bill as written appears to run afoul of a number of constitutional protections and she anticipates a swift legal challenge if it passes.

But a legal battle can take a long time to resolve, and in the meantime, she anticipates companies might go ahead and comply, rather than risk violating the law.

“We just know so much at this point about how risk averse people are. Even doctors that provide reproductive health care to patients directly are risk averse,” she said. “But internet companies and the manufacturers of abortion pills, companies that are less grounded in the mission, we can expect even more of a chill from them.”

Other pill bills

Republicans have filed other bills that eat at the edges of the abortion medication issue.

SB 2625 filed by Sens. Donna Campbell of New Braunfels and Angela Paxton of McKinney, would require any medical provider to be physically present in Texas before they prescribe abortion-inducing medication to a patient. HB 4593 by Rep. Ellen Troxclair takes a similar approach.

HB 1651, filed by Fort Worth Rep. Nate Schatzline, would make it a deceptive trade practice to sell abortion medication online without verification that an in-state doctor had performed an in-person medical exam first.

While these bills would heighten the penalties for online pill providers, it’s unlikely to pierce the shield that blue states and, in some cases, other countries have wrapped around their abortion providers.

While these so-called “shield laws” haven’t been fully tested in court, New York, at least, has shown a willingness to defend its doctors against civil and criminal charges from red states.

“If post-Dobbs has any major lesson that we've learned, it’s that when people need an abortion, they find a way to get it,” Donley said. “I suspect that no matter what happens in Texas, people will find new ways to get access. The question is just, are they forced to do things that are less safe?”

Controlled substances

Some Republicans are trying a different tack by trying to classify mifepristone and misoprostol, common abortion-inducing drugs, as controlled substances. This legislation is modeled after a similar law in Louisiana, where health care providers say the restrictions have delayed urgent miscarriage care.

“There’s no sense in it,” Dr. Nicole Freehill, an OB/GYN in New Orleans, told The Texas Tribune in November. “Even though we kept trying to tell them how often [these medications] are used for other things and how safe they are, it didn’t matter. It’s just a backdoor way of restricting abortion more.”

HB 1636, filed by Rep. Tom Oliverson of Cypress and Rep. Pat Curry of Waco, has the backing of national anti-abortion groups.

County abortion funds

Lt. Gov. Dan Patrick also has designated another abortion bill, SB 33, as a priority. This bill would stop cities and counties from supporting abortion funds and nonprofits that help people travel out of state to terminate their pregnancies.

Last year, Austin City Council appropriated $400,000 to help city residents travel out of Texas to get abortions. Attorney General Ken Paxton and a former city councilor sued over the policy, saying it violated state law. Those lawsuits are ongoing.

The San Antonio City Council also allocated $500,000 for a reproductive justice fund, some of which was to be used to support out-of-state travel. But after much debate and a lawsuit, ultimately none of the organizations the fund supports pay for abortions or logistical support for abortion-seekers.

SB 33 has 18 authors and is expected to pass the Senate easily. The companion bill, HB 1806, filed by Rep. Candy Noble, has four additional co-authors.

Conscience objections

A flurry of bills from Republicans also attempt to widen the ways doctors, nurses and pharmacists can opt out of providing certain health care due to conscience objections.

SB 619, filed by Sen. Kevin Sparks, R-Midland, and HB 2816, filed by Oliverson, would allow health care providers to decline to provide non-emergency medical care due to a sincerely held set of moral convictions. The bills specifically note that they can opt out of providing family planning, counseling and referrals related to contraception, sterilization and abortion.

SB 1985, filed by Sen. Bob Hall, R-Edgewood, would allow pharmacists to refuse to fill prescriptions for emergency contraception or abortion medication.

Both mifepristone and misoprostol have other uses beyond abortion, including treating miscarriages and some autoimmune disorders, and since the overturn of Roe v. Wade, patients across the country have reported issues in getting these medications from pharmacists.