The Eighty-third Texas Legislature will always be known for the abortion debate that brought thousands to the Capitol, made a (very brief) international sensation out of former state senator Wendy Davis, and cemented “orange shirts” and “blue shirts” in the Texas political lexicon. And while the so-called omnibus abortion bill HB2 that passed out of the 2013 legislature remains in limbo at the moment—a status that could change at any time, when the Fifth Circuit Court of Appeals makes its final ruling (although that’ll just lead to an inevitable Supreme Court appeal on the part of the loser)—the 2015 version of the Texas Legislature hasn’t been sleeping on abortion.
This time out, there are no broad, sweeping laws being proposed or passed that upend abortion access throughout Texas, rather, there are a number of bills and amendments that are in various phases of the legislative process that could end up as laws by the end of the Eighty-fourth Legislature (and the increasingly likely special sessions that could follow). Here’s what they are and where they stand:
HB 3994: Requires government-issued ID for all abortions, and makes broad changes to judicial bypass for minors
Currently, if a minor seeking an abortion intends to go through with the procedure without parental notification or consent, they can go apply for judicial bypass, or an order from a judge. The process is confidential, and the judge’s role is to determine if the minor seeking the abortion is capable of making that decision without parental input. Teens seeking a judicial bypass can file for the order anywhere in Texas.
Under HB 3994, which passed in the house on May 13, things change: Right now, the standard that the judge is meant to use when determining if the teen is qualified to make the decision is “a preponderance of the evidence,” which roughly means “more likely than not.” Under HB 3994, the standard becomes “clear and convincing evidence” of the teen’s maturity and competence—essentially raising the standard from what’s typically held in civil cases and situations in which the decision is made by a judge to something closer to the evidence required in criminal jury trials.
That’s likely a challenge for teens, who will often have to prove to a high legal standard that they’re mature enough to make the decision to have an abortion without the help of a lawyer. If precisely what sort of evidence a person needs to offer as proof is confounding to you, well, it probably is confounding to a pregnant sixteen-year-old too.
That’s not all that HB 3994 does to the bypass process. The judicial bypass application can currently be filed in any county in Texas—something that the organization Jane’s Due Process, which helps minors through the judicial bypass process, explains in its instructions for teens as, “If you know someone who works at your local courthouse, you can file the application elsewhere.” The bill would require the application to be filed in the minor’s county of residence (or in a neighboring county, if the home county’s population is smaller than 10,000), or in the county in which the abortion provider is located. Additionally, the names of judges who grant bypasses, which are currently confidential, would be made public.
There’s one more piece to HB 3994 that affects more than pregnant teens: The bill’s language says that, “A physician shall presume that a pregnant woman is a minor unless the woman presents a valid government record of identification showing that she has reached the age of maturity,” essentially creating the same ID requirements that Texas’s controversial voter ID law holds for those seeking abortions.
That’s a significant issue for undocumented Texans seeking abortions. While the Voter ID law is designed, in part, to keep undocumented residents of Texas from voting—which makes sense—an undocumented Texan has the same right to an abortion that someone with a valid state-issued ID has, and the language that states that anyone seeking an abortion is presumed to be a teenager until proven otherwise is frankly bizarre.
During last night’s debate, lawmakers rejected an amendment that would exempt minors who have been the victims of incest from the bypass restrictions in HB 3994. In most debates surrounding abortion in Texas lately, exceptions for rape and incest are proposed and promptly voted down, but it’s surprising to see the same happen in HB 3994, which is positioned as a bill to prevent the state from interfering with the relationship between a parent and a child. In a case involving incest, it’s hard to argue that the state doesn’t have a responsibility to get involved in that situation. Still, when it comes to abortion in the Texas Legislature, allowing for exceptions of any kind is currently deeply unpopular.
SB 575: Bans abortion coverage in private insurance plans
Texas already restricts public funding for abortions, and SB 575—which passed the Senate on May 5—extends that restriction to privately purchased insurance plans, except in cases where the life of the person seeking the abortion is at risk because of the pregnancy.
The bill’s sponsor, state senator Larry Taylor, a Republican from Friendswood, says that the bill is designed to prevent a scenario in which “people across Texas who buy insurance be forced to pay for something they don’t believe in.” The argument goes that, since insurance is a pool of money paid into by all who buy the service, some of the money paid in premiums by people who have private insurance might go toward someone else’s abortion.
That is a possibility, but it’s a curious government intrusion. If a customer disagrees with the practices of private companies, he or she is free to take his or her business elsewhere.
The bill does allow insurance companies to create a separate pool available for those who want supplemental coverage that would cover abortion services, but it’s unclear how much that would cost (an insurance expert interviewed by the Dallas Morning News doubted that a “viable market” for such plans would exist at an affordable rate, though Senator Taylor suggested during the floor debate that the price would be low).
CHSB 2510: Amendment would require nonviable fetuses be carried to term
This is a weird one, because CHSB 2510 is a Sunset Bill for the Department of State Health Services, which means that its passage ensures that there is a Texas Department of State Health Services beyond this September. CHSB is guaranteed to pass.
However, on April 23, Representative Matt Schaefer, a Republican from Tyler, proposed an amendment to the Sunset Bill that had nothing to do with the state agency—rather, it would “prohibit the performance of an abortion at a facility on the basis that the fetus has a severe and irreversible abnormality.”
People get abortions for any number of reasons, but stories of people who terminated wanted pregnancies because the fetus developed abnormally have typically been portrayed as especially sympathetic. We’ll leave to others the philosophical question of whether it’s more compassionate to terminate a pregnancy in which a brain developed outside of the skull, or to give birth to the baby whose lifespan is usually minutes or hours.
But philosophical questions were at the heart of Schaefer’s amendment—which appeared very likely to pass on April 23, before the original bill’s sponsor pulled the entire bill after a legislative point of order—and he spoke like a theogian when he declared that it was not man’s place to attempt to allay the suffering in those minutes or hours. “That’s part of the human condition, since sin entered the world,” he said from the floor.
Schaefer’s amendment would enshrine in law the idea that because suffering has become part of the human condition since the creation of sin, the state should forbid doctors from attempting to ease certain kinds of suffering. At the moment, it appears unlikely that such an amendment will resurface before the end of the Eighty-fourth Legislature, but the Texas Lege can be hard to predict sometimes.
Everything Else
There are other bills that deal with abortion in various stages of the legislative process. Some, like SB 114 (which prevents someone who previously had a license revoked from a healthcare facility, including an abortion clinic, from opening another such facility), are unlikely to have a significant impact on abortion access in Texas; others are very unlikely to pass. RH Reality Check did a fine job of breaking down all 32 bills from this legislative session that deal with abortion in any capacity.
HB 2: Still waiting
Our last update on the status of HB2 was in early January. Since then, nothing has changed: The Fifth Circuit Court of Appeals has yet to issue a ruling, which is surprising—it could come at any time, most likely on a Friday afternoon. Every Friday that the ruling doesn’t come down is a bit of a surprise, but it’s impossible to read the court’s slow decision as any sort of evidence as to which way it’s leaning. In any case, we’ll update this post when the ruling comes, and it’s almost a foregone conclusion that regardless of what the Fifth Circuit decides, it will end with the losing side taking it to the Supreme Court.
