Special Procedures

Katy Republican Senator Glenn Hegar combined measures that failed to pass during the regular session into an omnibus abortion bill that won approval in the state Senate late Tuesday night.

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Sen. Glenn Hegar, R-Katy, the sponsor of SB-5, the omnibus abortion bill that passed out of the Senate in a 20-10 vote late Tuesday.
AP Photo | Harry Cabluck

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 handan 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 facilitiesor 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 debatethe 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 the 2014-2015 biennial budget. She nonetheless agreed with Hegar about the issue at hand. “What makes this procedure so special is that it ends a life,” she said. “We do need to give it special attention.”

The Democrats’ lone non-rhetorical victory came after San Antonio’s Leticia Van de Putte, who is a pharmacist, questioned the bill’s requirement that an outdated dosage of the medical abortion pill be administered. “You have about six percent more complications using a higher dose,” Van de Putte said, urging the state not to adopt FDA requirements that were established more than a decade ago. Hegar rebuffed this concern and won the fight to table the amendment, but Van de Putte won the argument hours later, via proxy, when Greenville Republican Bob Deuell, who is a physician, offered an amendment incorporating her suggestions.   

Democrats, however, were not much reassured by that. Neither were they mollified by Hegar’s announcement that he would remove the “fetal pain” provision from the bill. This was a move that elicited some surprise. Republicans, in Texas and around the country, have been fussing about this issue for years; earlier in the day, in fact, the U.S. House of Representatives had passed a bill on that very topic. And some of Hegar’s Republican colleagues were vocally displeased when the provision was removed. Deuell, for example, argued that just as the age of viability has changed considerably since Roe was decided, in 1973, so has the science on when the nervous system can feel pain. But John Whitmire, from Houston, found it curious that Hegar would give up on a cause he loudly championed all session. The move, he pronounced, was a “politically expedient one” on Hegar’s part.

The measure passed out of the state legislature’s higher chamber in a 20-10 vote, with only one Democrat, Sen. Eddie Lucio of Brownsville, voting for the bill. Prior to the bill’s final passage, Watson stepped up to make one final impassioned plea against the measure. Along with last session’s cuts to family planning and last week’s veto of the fair pay act, he said, the bill had to be seen as part of a larger pattern.

“These aren’t isolated issues, members; these decisions connect with each other,” Watson said. “They come together in ways that seem to be specifically designed to ensnare Texas women. For politics. To win primaries—to appeal to a tiny segment of this state’s voters. Women are collateral damage in that effort.” 

Republicans bristled at that critique. And despite all the debate, and the advocates in the gallery with their silent reference to the 1960s, they will maintain that the goal of the bill is to make abortion safer on behalf of women as well as children. Only later did Dewhurst tip his hand via Twitter. “We fought to pass SB-5 thru the Senate last night, & this is why!” he said, linking to an image. The image came from Planned Parenthood, and included a warning for Texas: “If SB-5 passes, it would essentially ban abortion statewide.” This prompted a response from Wendy Davis on Facebook: “No matter your position on the bill, this sort of deception defeats sincere attempts to improve women’s health care, undermines our democratic process, and poisons trust in government,” she wrote. 

*A previous version of this article mistated how many charges Gosnell was found guilty of. We regret the error.

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