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A Long and Bitter Fight

The abortion debate has come to define our politics—and it’s not going away.

By March 2014Comments

Illustration by Thomas Fuchs

On Mockingbird Lane, just four blocks east of Central Expressway, in Dallas, is an unremarkable row of businesses that includes a Mobil 1 Lube Express and a Walgreens. In February 1970, however, 5734 E. Mockingbird Lane marked the spot of a popular pizza joint called Colombo’s, now long gone, where a homeless pregnant woman named Norma McCorvey first met two young lawyers, Linda Coffee and Sarah Weddington. McCorvey wanted to have an abortion, which was banned under Texas law except when the life of the mother was in danger. At the urging of Coffee and Weddington, she became the most famous anonymous plaintiff in the country, and when the Supreme Court decided Roe v. Wade in January 1973, it changed the landscape of national politics by ruling that a woman’s right to an abortion was protected by the Fourteenth Amendment. More than forty years later, Texas is once again at the forefront of the abortion debate. An omnibus bill that passed in last summer’s second special session—and is currently winding its way through the appellate courts—contains some of the tightest restrictions in the country, including banning abortions after twenty weeks, even in cases of incest or rape; requiring abortion clinics to meet the same standards as ambulatory surgical centers; mandating that a doctor who performs abortions have admitting privileges at a hospital within thirty miles of the clinic; and imposing new regulations on RU-486, a drug used to terminate pregnancies. House Bill 2 was as controversial as it was partisan, with a single Democrat in the Senate voting for it and a lone Republican in the House voting against it.* It also provided the vehicle for Democratic state senator Wendy Davis’s filibuster, which ran out the clock on the first special session and propelled her into the gubernatorial race. She has already tangled with her likely opponent in the general election, Republican attorney general Greg Abbott, a staunch defender of the provisions in HB 2, ensuring that the uncomfortable issue of abortion will be a constant presence for the remainder of the year.

The law, along with others passed in recent sessions, is part of a groundswell of legislative action around the country to restrict abortion. To understand just how remarkable the increase in regulations has been in Texas, consider what Attorney General John Hill wrote in a 1974 letter: “There presently are no effective statutes of the State of Texas against abortion, per se” (emphasis mine). The following year, during the 1975 legislative session, 12 abortion-related bills were introduced, but not one made it to a second reading on the floor. In the next session, 5 bills were introduced, with no success. In fact, over the next nineteen years, 84 bills related to abortion were introduced, but only 2 passed, including a measure regarding the “rights and the protection of a living child born as a result of an abortion.”

The breakthrough came in the 1997 session, when George W. Bush was governor. He signed two consequential bills relating to penalties for abortion facilities that do not meet minimum standards, as well as the right to access certain information about abortion clinics. That was followed in 1999 by the contentious parental-notification bill, which had failed several times before. Even as the number of clinics in Texas was declining, and with it the overall rate of abortion in the state, the Legislature passed additional bills in the 2001 and 2003 sessions, and in 2011 Republicans pushed through the sonogram law, which requires, among other things, a woman to listen to a description of the fetus and hear its heartbeat before getting an abortion. Then, last summer, came HB 2. As a result of those legislative efforts, the restrictions in place in Texas today are closer to what was on the books before Roe than at any other time in the past four decades.  

The reason for this is simple. Abortion has long been a defining issue for a segment of conservative voters, but it wasn’t until 2003, when Republicans consolidated control of every lever of state government by winning the House of Representatives, that it became an issue they could actually act upon. A similar process has played out in other state capitols. After the 2012 elections, the number of states with single-party control of both the legislature and the governor’s office reached the highest point in sixty years, with 23 states dominated by Republicans and 13 by Democrats. Not surprisingly, 16 of those 23 Republican-led states enacted some form of abortion restrictions last year (only one Democratic-led state, Maryland, did as well).

Because abortion remains such a divisive issue, with precious little middle ground, politicians on both sides who cast themselves as purists have been rewarded by the extremes of their party—and in a one-party state, that currency can be more valuable than nearly any other. “Your position on abortion rights is one of the defining characteristics of your partisanship,” says James R. Henson, the director of the Texas Politics project at the University of Texas at Austin. “On the one hand, abortion is an intensely private decision that comes with a high level of moral consequence. On the other hand, because it is so politically loaded, it has been subject to tortuous politics. We are where we are today because the state has jumped back and forth between these two positions.” 

In an earlier, less partisan era, the Legislature avoided wading into this “intensely private decision.” Even Republican governor Bill Clements, who was firmly pro-life, angered supporters in 1989 when he refused to put abortion restrictions on the call for special sessions of the Legislature. Now, with partisanship at an all-time high and with the minority party unable to put any serious obstacles in its path, the Republican Legislature has made regulating abortion a signature issue. And even that doesn’t appear to be enough. In the first primary debate between the four Republican candidates for lieutenant governor, which was televised statewide, all of them said they did not support any exemptions for abortion in the case of rape or incest. Only the incumbent, David Dewhurst, made a strong, unequivocal case for exemptions that protect the life of the mother. 

What shouldn’t be overlooked is that, according to Gallup, the general ideas behind some of Texas’s current laws—as restrictive as they are—are not out of step with national trends: 64 percent of Americans support a ban on abortion during the second trimester, 69 percent support a waiting period, and 87 percent support informed-consent laws in which doctors explain the possible health risks to their patients.

Yet when pollsters asked about the specific bill taken up by the Legislature, there was less unanimity. In June 2013, as the debate over HB 2 was in full swing, a UT–Texas Tribune poll conducted by Henson found that 47 percent of adults in Texas supported a ban on abortions after twenty weeks (that number was two points higher for those people who believe that a fetus can feel pain by that point of a pregnancy—a powerful but medically questionable claim). Only 22 percent of Texans strongly opposed the ban after twenty weeks, but in October another UT–Texas Tribune poll found that 37 percent of Texans believed that abortion should always be legal (29 percent said that abortions should be allowed only in cases of rape or incest or when the life of the mother is in danger). Those results suggest a deep difference of opinion. And while attitudes toward some other social issues, such as gay marriage or marijuana decriminalization, have seen significant movement (think of Governor Rick Perry’s recent comments at the World Economic Forum, in Switzerland, on the latter issue), public opinion toward abortion has remained stable over the past several years, according to Henson. One notable exception to this is McCorvey herself. Years after her case was decided, she famously became a pro-life activist and criticized Coffee and Weddington for their tactics in the case.

The manner in which Republicans have promoted these bills, however, speaks to a key aspect of public opinion: a vast majority of Texans, according to Henson’s polling, still believe that abortion should not be outlawed entirely. Thus, the central issue of legislation like HB 2 comes down to access versus regulation. Even in Roe, the Supreme Court ruled that women have a right to the procedure but that the state has an interest in regulating it. As Republican lawmakers took up HB 2, certainly some, including Perry, talked about their desire to end abortion forever. But those debating the bill took pains to make the case that the legislation was primarily about women’s health and safety. 

Was that sincere? Was it coded language? It was undoubtedly a little bit of both. But if the intention was to chip away at the protections afforded under Roe, doing it under the guise of safety was designed to make it more acceptable, particularly given how rarely abortion clinics encounter the kinds of medical emergencies that the legislation seeks to address. “The omnibus bill used one frame—the frame of quote-unquote regulation of the procedure—to achieve something that people are less tolerant of, which is limiting access,” Henson says. 

This is more or less what lawyers for Planned Parenthood argued when the case came before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in January. The intent of the bill, they asserted, was to discourage Texas women from exercising their constitutional right to an abortion. The judges, however, seemed undisposed to agree with that during oral arguments, and most everyone involved will be shocked if the law is not upheld later this spring. The state, after all, has a strong track record at the Fifth Circuit, including a ruling in favor of the sonogram law from the 2011 session. 

The question now is how much regulation Texans will accept. A report issued in February by the Guttmacher Institute, which researches sexual and reproductive health, showed that the abortion rate in this country has fallen to its lowest level since the Supreme Court issued its ruling on Roe v. Wade, but much of that decline has been credited to the increased availability of contraception. Still, Republican candidates in Texas continue to be far more worried about burnishing their conservative bona fides for the primary than appealing to the more moderate voters in the general election. Witness, for example, the criticism of the judge who ruled in January that a pregnant, brain-dead woman from Haltom City could be taken off life support. That case had nothing to do with abortion, but certain lawmakers—including every single Republican candidate in the lieutenant governor’s race—jumped on the issue as an affront to the pro-life movement, and some conservatives are vowing to rewrite the law in the next legislative session. That kind of talk energizes voters on the far right whose ultimate goal is to end abortion completely. Given the course Texas is on, it may not be long before that goal is effectively achieved.

*Correction: An earlier version of this story stated that only one Democrat voted for House Bill 2, but that was true only in the Senate. We regret the error.

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