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A Letter from Austin #24: Strange Days in a Post-Roe World

Texas Lawmakers Initiate the Clampdown

Readers of my “Letters from Austin” column will recall my dire, if somewhat vague, warnings earlier this year about what might happen if the United States Supreme Court were to overturn Roe v. Wade. The notion that Roe was doomed seemed fanciful at the time. After all, the new (or new-ish) conservative justices on the Court — Gorsuch, Barrett, and Kavanagh — had each pledged fealty to Roe as settled law. Even aside from these sober pledges, though, the importance of letting women make their own decisions about whether to create, carry, and deliver a child seemed like such a basic proposition that I was unable to believe the Court would repudiate it.

But it did.

Now Dobbs v. Jackson Women’s Health Organization is set to become the new law of the land, women no longer have the constitutional privacy protection set forth in Roe, and in Texas, at least, things are — as I predicted — getting strange.

Once Dobbs becomes official, Texas’s trigger law regarding abortion will become operative. The law says that once pregnant, a women cannot obtain an abortion in Texas unless gestation or delivery would endanger the life of the mother. There are no exceptions for rape or incest, no matter how young the mother is. Mind you, given the Supreme Court’s holding in Dobbs, Texas could have kept in effect its so-called “fetal heartbeat bill,” meaning that abortion would be legal only until signs of electro-cardiac activity could be detected and thus, by some definitions, independent life begins. (In fact, this is the definition recognized by the statute’s author, State Senator Bryan Hughes.) This means, in practice, that a woman would have around six weeks after conception to have an abortion. As critics have pointed out, many women don’t even know they’re pregnant at six weeks. Rather than this fairly restrictive position, though, Texas has now chosen to make abortion illegal ab initio — from the beginning.

And it gets worse:

The Way-Back Machine. Attorney General Ken Paxton, who is still under criminal indictment, by the way, and is furthermore facing disciplinary charges from the State Bar in connection with his role in the January 6 fiasco, has stated that he believes all laws in effect in 1973, when Roe took effect, have now been magically revived and apply as if they were never obviated fifty years ago. Chief among these old laws: A statute passed in 1925 providing that assisting a woman to obtain an abortion is punishable as a felony, with a possible penalty of two to ten years in prison. In case you’ve forgotten 1925, Babe Ruth was a young outfielder for the New York Yankees, some 50,000 Ku Klux Klan members marched through the streets of Washington, D.C., there was a constitutional ban on the sale of liquor, and women had obtained the constitutional right to vote just five years earlier. The 1925 statute will apply in Texas until the trigger statute takes effect, though for now at least the criminal enforcement provisions of the old law are on hold pending further litigation.

Lovely Day for a Drive, Ladies. Can I See Your Papers? State Representative Dr. Tom Oliverson has indicated that he and one of the organizations of which he is a member, the National Association of Christian Lawmakers, are exploring ways to restrict Texas residents from traveling to other states to obtain an abortion.

Please Pay Attention to Me. State Representative Brisco Cain, of Pasadena, has joined several of his comrades in the Legislature in trying to figure out ways to penalize companies that pay health insurance benefits for employees seeking an abortion. Cain even co-authored a letter to Lyft, the ride-sharing company, threatening the business with dire consequences, possibly even criminal prosecution, if it continues to pay such benefits.

Your Honor, You Don’t Know Me, But… In response to statements from district attorneys in urban areas that they would not prioritize prosecuting women who obtain abortions, Representative Cain also signaled that he would support legislation that would allow DAs from conservative counties to file cases not only in their own districts, but in any district in the state.

Foster Children? What Foster Children? In a lack of development that has surprised no one, state officials have announced no plans to increase spending on Texas’s legendarily bad foster care system, in which some 28,000 children regularly sleep in office buildings for lack of families to take them and facilities to house them. Texas’s new anti-abortion law will doubtless result in additional numbers of kids without homes. Where will they go? Does anyone care? In fairness, some Texas legislators have announced they are studying proposals to improve the state’s adoption system. So there’s that. But studies without action are meaningless, and Texas officials have a long way to go if they want to show they’re not just pro-birth, but also pro-life.

Abbott’s Empty Pledge, Governor Greg Abbott earlier this year addressed concerns about Texas’s anti-abortion trigger law not containing exceptions for pregnancies related to rape or incest. He promised to remove all rapists from the streets of Texas. Never mind that a rapist can’t be prosecuted for a crime until it has already been committed. There has been no apparent increase in state arrests or prosecutions for rape. Incidentally, the state government can’t prosecute anyone for rape anyway — only local district attorneys can, which means that Governor Abbott’s pledge was both false and foolish.

But this is Texas. What else is new? The state’s current carnival of pregnancy policemen is another result of gerrymandered House districts in Texas and their creation of a legislative body composed of increasingly extreme representatives on the left and right. In recent polling, the University of Texas/Texas Politics Project found that only 37% of Texans support the state’s new no-exceptions, applicable-from-conception anti-abortion statute. And yet here we are, stuck with a law that is neither popular nor pragmatic. And so we’ll remain — at least until Texans, a notoriously apathetic lot, get out and vote.