A group of women’s health activists in hats, gloves, and pearls sat in the gallery of the Texas Senate on Tuesday evening, their ‘60s-era garb a statement on the implications of the measure at hand —an omnibus abortion bill, SB-5.
The bill, after all, would require all abortion clinics in Texas to upgrade their facilities to the standard of ambulatory surgery centers, change how abortion-inducing drugs are administered, and require that clinic doctors have admitting privileges at a hospital within 30 miles. According to critics, this is an effort to severely restrict access to abortion. The provisions related to clinics, for example, would require expensive renovations for many facilities —or outright closure for those that don’t have a hospital nearby. Planned Parenthood has warned that SB-5 would effectively shutter 37 of the state’s 42 abortion-providing facilities.
Republicans have insisted that this is not the point. The bill’s sponsor, Katy Republican Glenn Hegar, said that it “raises the standard of care” for women seeking abortions and protects the lives of the unborn. Lieutenant Governor David Dewhurst, who had repeatedly called for Governor Rick Perry to add abortion to the special session’s agenda, had frequently invoked the genuinely horrific case of Kermit Gosnell, a Philadelphia-based doctor who was recently convicted of three counts of murder after killing three babies* who were born alive (and on a count of involuntary manslaughter for a woman who died in his clinic after receiving too much anesthetic during a procedure).
The result was a six-hour floor debate —the longest, and most heated, that the Texas Senate has seen this year, with Senate Democrats arguing that their Republican colleagues had violated the chamber’s tradition of bipartisanship and were being disingenuous in their professed concern for women’s health. Though the bill passed, those resentments will linger.
As Fort Worth Democrat Wendy Davis noted, the omnibus bill rolled together “bills that did not, would not, and could not pass during the regular session because of our two-thirds rule.”
During regular session, that is, the Senate Democrats are often able to act as a moderating influence because of the Senate’s longstanding “two-thirds rule,” which basically means that although the body can pass a bill with a simple majority vote, they need a two-thirds majority to agree to take up the bill on the floor in the first place. There are 20 Republicans in the Texas Senate (not including Dewhurst, who presides over the chamber), and 11 Democrats. Republicans don’t need Democratic votes to pass a bill, but they do need at least a couple of Democrats to agree to hear the bill.
Perhaps counterintuitively, both parties are broadly supportive of the two-thirds rule; it guarantees at least a little bit of bipartisanship, and, as a result, encourages collegiality. The rule does mean, however, that Republicans can’t just do whatever they want. That was what happened when the abortion bills were brought up during the regular session, as Davis noted, and at the start of the special, the majority party had decided to scrap the rule.
“If this is now going to be our new process, using a special session to ram through any partisan red meat that fails in the regular session, it makes a mockery of the traditions that so many of us on this floor brag about,” said Kirk Watson, of Austin, who chairs the Senate Democratic Caucus and had led an effort to keep the two-thirds rule intact on the first day of the special. “Remember this day the next time we congratulate ourselves on what a fine deliberative body we all belong to.”
Democrats, thus declawed, could do nothing but argue against the bill on the merits, which they did, by offering some 18 amendments. Many of these meant to address core causes of unplanned pregnancies, such as lack of access to preventative and women’s health care and sex education. Houston Democrat Rodney Ellis, for example, offered an amendment that would link SB-5’s implementation to the state’s adoption of Medicaid expansion. “You’re telling me this is primarily about the quality of care?” asked Ellis. “Why don’t you commit to draw down that federal money so that we show as much concern for children that are here that some have for children who are not?”
Other amendments tackled the logic of the bill itself. Carlos Uresti, a Democrat from San Antonio, offered one that would exempt abortion facilities more than 50 miles from other clinics from the bill’s provision. His district stretches from Schertz to Alpine; the measure, he warned, could leave 150,000 women in his district, without access to abortion facilities. Uresti had, along with Laredo Senator Judith Zaffirini, opposed the abortion bills during the regular session for similar reasons—that the restrictions in question would reduce access to healthcare, which is not terribly abundant in Texas anyway—despite the fact that both of the senators in question are pro-life.
Davis, meanwhile, methodically queried Hegar about the measure; one journalist in the chamber compared her line of questioning to “a draft of a legal brief for a lawsuit challenging the bill if passed into law.” A sampling: “Do you believe that legislators are better at deciding how to provide safer care than doctors do?”; “Are you aware that if you have a vasectomy, which requires an incision, you can have that in your doctor’s office?”; “Why do wider doors and wider hallways create a higher standard of care for women?”
Hegar was, to Davis’s apparent frustration, unable to offer any data on the safety of ambulatory surgical centers versus regular abortion clinics. Instead, he responded with generalities: “In my opinion this legislation raises the standard of care and moves towards protecting life,” and so on.
Jane Nelson, a Republican from Flower Mound, chimed in later in Hegar’s defense, referring back to one of Davis’s questions, about why Hegar was so concerned about this particular aspect of reproductive care. Nelson had, during the regular session, led the fight to restore funding for women’s health care in