Texas Abortion Policy: To Choose or not to Choose?
Abortion has been a contentious debate for over a hundred years. One side of this debate is often rooted in patriarchal perceptions, misguided religious views, and right-wing partisan politics. The other side is grounded in a discussion of freedom, women’s right to choose, and decreasing government intervention. This debate arises every national election cycle and at various levels of government. Overall, this issue is never-ending despite the landmark decision by the U.S. Supreme Court in 1973 in Roe v. Wade. Today, increasingly restrictive abortion laws are being passed and signed into law at the state level as we have seen in the recent abortion ban in Texas. This approach prevailed for a hundred years until the decision in Roe v. Wade.
When examining abortion laws and practices there needs to be a discussion of the American Medical Association (AMA), an association of mostly male doctors which was established in 1847. The AMA, whose members believed only doctors should decide when abortions could be performed legally, scrutinized and sought to phase out reproductive health services offered by midwives and nurses (Planned Parenthood, 2022). By 1880, all U.S. states had implemented laws to restrict abortion and the only exception was to save a woman whose life was in danger (Planned Parenthood, 2022). However, a problem with this was the doctors and legislators were men, creating problems for the inclusion of women’s views and concerns.
In 1910, abortion was not only restricted but was illegal. Some would argue that these restrictions were rooted in racism and nationalistic views. During 1910 there was an increase in immigration, which led upper-class White males to find ways to assure upper-class White women would have more children and thereby increase the number of Whites in America. In the 1930s, abortions were conducted underground and as expected there was an increase in the number of deaths by women undergoing these procedures, with illegal abortions continuing to occur (Planned Parenthood, 2022). In 1955, Planned Parenthood Federation of America organized the first conference seeking to legalize abortion in this country and allow doctors to provide these services. In 1964, abortion law reform activists organized the Association for the Study of Abortion (ASA).
As the fight for legal abortions continued more women sought abortions for birth defects as doctors who performed abortions faced criminal charges. One important instance was the case of the San Francisco Nine in 1966, when nine doctors faced charges for performing abortions on women who had been exposed to Rubella, a disease that can cause birth defects (Planned Parenthood, 2022). In the following year, states began to pass abortion reforms laws, with Colorado, in April 1967, being the first state to liberalize access to abortion, permitting abortion in the case of rape, incest, or other specified conditions. Three months later, Governor Ronald Reagan signed the California Therapeutic Abortion Law, and in April 1970, New York became the first state to offer abortions on demand.
In 1973, the U.S. Supreme Court declared state criminal abortion laws unconstitutional in Roe v. Wade which spurred an anti-abortion movement. In Roe v. Wade the Court found that state laws like that in Texas which criminalized abortion “without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment” (p. 164). In short, by law women and their physicians in all 50 states can decide if they want to terminate a pregnancy as specified.
The passage of Roe v. Wade was not the end of abortion debates, restrictions, or legal fights. In 1976, with the passage of the Hyde Amendment federal dollars could not be used by Medicaid for abortion services, except in cases of incest, rape, or risk to the life of the mother (Planned Parenthood, 2022). Proportionately, the populations that are more likely to use Medicaid are racial and ethnic minorities, which makes the Hyde Amendment a law that negatively impacts both the poor and ethno-racial minorities. Yet, some states still decide whether they will include or exclude funding for abortion services for Medicaid recipients.
As seen in the implementation of the Hyde Amendment, states still have considerable authority in deciding whether or not to support abortion, restrict abortions, and/or restrict funding to Medicaid recipients. The most recent history of abortion in Texas shows how abortion is restricted in that state. For instance, the Women’s Right to Know Act in 2003 was passed in an effort to stop abortions. This law provides misleading information to patients seeking to terminate pregnancies and instead persuades them to seek other alternatives (ACLU TX, 2022). In 2005 the State of Texas banned abortions after 24 weeks and required parental consent for patients under the age of 18 who wanted an abortion (ACLU TX, 2022). This was not the end of restrictive abortion laws in Texas, where in 2011 the State required that patients receive a sonogram 24 hours before an abortion that includes viewing an ultrasound image of the fetus and listening to its heartbeat, as well as a private consultation with a physician on abortion (ACLU TX, 2022). That same year, Texas defunded Planned Parenthood and appropriated funds for an Alternatives to Abortion program. In 2013, Texas passed House Bill 2, which added more restrictions on abortion. Stipulations in the bill include:
Doctors must have admitting privileges at a hospital within 30 miles of an abortion facility; Abortion after 20 weeks post-fertilization is banned, unless a patient is at risk of death or the fetus has a severe medical problem; Doctors administering medication must follow a state-mandated protocol; All abortion facilities must meet the standards of ambulatory surgical centers (mini-hospitals), even if a facility only provides abortion by providing pills to swallow. (ACLU TX, 2022: para. 5)
Several reproductive groups challenged the law, and their case was ultimately heard by the U.S. Supreme Court which struck down admitting privileges for doctors and surgical center requirements, but other portions of the law remain.
Over time the State of Texas has made it increasingly more difficult for women to have abortions. New laws have been passed that make it difficult for minors without parental consent to seek an abortion; require health clinics to pay to bury or cremate tissue from the abortion; ban safe second-trimester abortions; ban insurers from including coverage for abortion in health plans; criminalize abortion providers who do not provide medical treatment for a fetus that was born after an abortion; and cut off support for clinics that are affiliated with abortion centers. Some of these new laws have been struck down by the courts while others remain in effect.
On September 1, 2021, we saw the implementation of a Texas 6-week abortion ban by Senate Bill 8 (SB 8), the Texas Heartbeat Act. This law bans abortion at six weeks for women in Texas and, further, it allows anyone to file a civil suit against a person who aids or assists in an abortion after 6 weeks of gestation. For example, a partner can file a lawsuit against a provider of abortions and can seek at least $10,000 with the defendant paying the plaintiff’s court costs. This creates a chaotic scenario for both women seeking an abortion and abortion providers in Texas.
Some argue that the 6-week abortion ban is a racist, classist, and sexist policy aimed at women of color and poor women, and at controlling women’s bodies. For instance, banning abortion will maintain women in poverty who might not have direct access to contraception or who will be forced to have more children from unintended pregnancies. Women who belong to the working class or are low income will face the most barriers with regard to seeking an abortion if they have to travel outside of the state of Texas. The costs of travel, food, lodging, and the procedure to terminate the pregnancy are prohibitive for many. This is less of a barrier for women from wealthier backgrounds who have the resources to terminate a pregnancy outside of Texas. This law, then, perpetuates economic inequalities among women in Texas and especially in relation to women of color who tend to be from working class backgrounds.
In addition to the negative impacts on the individual are the impacts on clinics based on the threat of a civil suit by private citizens. SB 8 not only makes anyone assisting a woman who gets an abortion subject to a civil suit, it expands policing of women’s health to anti-abortion parties. The threat of civil suits has resulted in the closure of abortion clinics that provide important services other than those having to do with abortion. In cases where life threatening emergencies arise, women’s lives are jeopardized.
As described by several scholars and media sources, today’s abortion debate is heavily rooted in religion, politics, propaganda, and institutional control. Evangelicals and the Religious Right used anti-abortion views as a way to mobilize followers after the Green v. Connally decision in 1971 that denied tax-exempt status to segregated private schools. Anti-abortion became the rallying call to action that promoted their political mobilization. Many conservative legislators at various governmental levels proposed and implemented abortion restrictions and bans.
Today, there is a 6-3 majority of conservative justices on the U.S. Supreme Court. This is due to the procedural tactics used by Mitch McConnell and Senate Republicans in the appointment of the last three justices, all of whom were nominated by President Trump. The new conservative justices include Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Having conservative judges is extremely consequential in the abortion debates because when state legislators pass strict anti-abortion laws they may be upheld by a conservative Supreme Court. This situation makes it difficult to uphold Roe v. Wade and to strike down the controversial laws recently passed in Texas.
The Texas abortion ban is likely headed to the Supreme Court for a second time on different issues. Given the composition of the Court, there is concern by pro-choice groups and individuals that the Texas 6-week abortion ban may be upheld as constitutional. On January 20, 2022, in Whole Woman’s Health v. Jackson, which challenged the enforcement part of the Heartbeat Act, the Supreme Court affirmed in part, reversed in part, and remanded the case to the 5th U.S. Circuit Court of Appeals, known as a conservative court, which had upheld the law and where it might remain for months. More recently, several abortion providers from Texas requested that their case be referred to the federal district court, but ultimately their motion was denied and their case to goes to the Texas Supreme Court.
Today there is great concern regarding the politicization of the courts, especially the U.S. Supreme Court. The handling of the challenges to SB 8 is a prime example of the impact political ideology has on the judicial branch of the U.S. government. As a result, there is much uncertainty as to what will happen to women seeking abortions and individuals seeking non-abortion services at community clinics.
When examining the impact of the 6-week abortion ban, we are also privy to policy diffusion effects. Policy diffusion in state politics and policy literature holds that states will adopt policies other states have implemented in their own given state, which initiates a diffusion of policies across states. Some states that are in support of following the 6-week abortion ban are Arkansas, Florida, South Dakota, Idaho, Indiana, and Oklahoma, which are in step with the Texas law.
As suggested, SB 8 will be most detrimental to women of color and poor women in Texas, especially Latinas, as they are nearly equal to the number of White women in Texas, each subgroup comprising approximately 20% of the population. Further, Latinas are more likely to come from low-income backgrounds, which creates a burden to those women who are seeking abortions in other states. The cost to travel and pay for the procedure prohibit access to abortion in other states. Additionally, women who do not have the means to travel to get an abortion are disadvantaged into the future because they will have children that will place additional financial burdens on their families. Overall, this abortion ban does not protect the constitutional rights of women that the Supreme Court ruled they have in Roe v. Wade. Although the majority of Americans believe women should have the right to decide whether or not to have an abortion, a minority of Americans have taken control of the nation’s governmental institutions and are imposing their religious and political views and values on the rest of the population. Due to the current membership of the highest court it does not seem likely there will be a change that will support pro-choice groups in Texas.
Roe v Wade. 410 U.S. 113 (1973). https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf
ACLU Texas. (2022). A Recent History of Restrictive Abortion Laws in Texas. https://www.aclutx.org/en/recent-history-restrictive-abortion-laws-texas
Sullivan, B. (2021). “21 states including Texas are poised to ban or severely restrict abortion if Roe v. Wade is overturned.” Houston Public Media. https://www.houstonpublicmedia.org/articles/news/politics/2021/12/03/414736/21-states-including-texas-are-poised-to-ban-or-severely-restrict-abortion-if-roe-v-wade-is-overturned/
Planned Parenthood (2022). Historical Abortion Law Timeline: 1850 to Today. https://www.plannedparenthoodaction.org/issues/abortion/abortion-central-history-reproductive-health-care-america/historical-abortion-law-timeline-1850-today