As Gov. Rick Perry (R – Texas.) opens the third special session of the Texas State Legislature — this time, with the intention of securing funding for the state’s roads — the ghost of the previous two special sessions threatens to bear itself. In question is a proposed additional check against potential abortion seekers in the state: a mandated three-hour “course” on adoption.
Introduced by State Sen. Eddie Lucio Jr. (D – Brownville) at the end of the second special session, the bill is slated to be re-introduced in the third session. “If we can set up a three-hour educational course that will hopefully inspire or have women give a second thought to their abortion thoughts and give up the child up for adoption … if we can save a few lives then I feel it will be worth the effort,” Lucio stated. Lucio is the only Democrat in the state Senate to vote for the Republicans’ proposal, H.B. 2, to close all but a few abortion clinics during the second special session.
“It is my hope that, when presented with more information on adoption resources and services available, more pregnancies can be carried to term,” Lucio said in a public statement.
This bill would add to an ever-lengthening list of requirements that an abortion seeker must complete to obtain an abortion in Texas. According to current law, a woman seeking to obtain an abortion must see an ultrasound of the fetus, hear a description of it and undergo counseling before setting up an appointment and driving to one of the six legally open clinics remaining in the second most-populous state in the Union.
According to the United States Supreme Court, per the 1973 landmark case Roe v. Wade, abortions are legal in this country. States are allowed to regulate and restrict abortions, but only in the case that the aborted child could, theoretically, have existed independently outside the womb and have reasonable survivability. Abortions of birth-ready fetuses, called late-term abortions, are banned in most states, typically after 26 weeks of gestation.
The Supreme Court, per the 1992 case Planned Parenthood v. Casey, created a test to determine the constitutionality of a state’s abortion laws. Known as “undue burden,” the test holds that a law is valid unless it creates an undue burden on a woman’s liberty or livelihood. The test was created in an attempt to balance the states’ rights of self-governance with a woman’s rights to her own body.
Recently, anti-abortionists have treaded into untested waters in an attempt to test the limits of Roe v. Wade. In Texas, a bill has been introduced in the House in hopes of being considered in the third special session. The bill would create a “trigger” that would immediately outlaw all abortions carried out in the state in which a fetal heartbeat could be detected by ultrasound in the eventuality the Supreme Court reverses the Roe v. Wade ruling. As a heartbeat during the first trimester of pregnancy would be impossible to detect conventionally, such legislation would also mandate the use of invasive ultrasound techniques, such as transvaginal probing.
As a heartbeat is not a sign of independent vitality, such legislation would be in violation of Roe v. Wade and would be immediate fodder for lawsuits unless Roe v. Wade were first overturned. However, this has not proven an effective obstacle to the wave of anti-abortion legislation. Earlier this year, North Dakota passed the nation’s first heartbeat abortion ban, banning abortions after six weeks of gestation. In July, a state court blocked enforcement of the law, ruling it unconstitutional.
“Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade,” Gov. Jack Dalrymple (R – N.D.) said in a statement prior to the passage of the heartbeat bill. The Supreme Court, he added, “has never considered this precise restriction” in regards to this bill.
Courts in Mississippi and Alabama have also blocked similar laws in their respective states.
Challenging the law
While H.B. 2 received the lion’s share of the media’s attention — in part due to Sen. Wendy Davis’ (D – Fort Worth) 11-hour filibuster — it was far from the only abortion-limiting bill introduced in the second special session. Among the legislation introduced were S.B. 9, which required that abortion-inducing drugs only be administered at an abortion clinic, with a mandated follow-up appointment 14 days later; H.B. 17, which banned sex-selective abortions; and H.B. 26, which would require a woman to fill out a “coerced abortion form” prior to the procedure, attesting that she is acting voluntarily.
Also proposed were H.B. 22, which would ban any affiliate of any abortion provider from offering information on sexuality or family planning for the purpose of sex education; H.B. 17, which only allows a minor two days from the filing of the petition to win consent from the court to authorize an abortion; and H.B. 27, which forces the minor — under H.B. 17 — to testify in open court why she wants the abortion.
In the last year, 14 states: Alabama, Alaska, Arkansas, Colorado, Georgia, Indiana, Kansas, Missouri, Mississippi, Montana, North Dakota, Oklahoma, South Dakota and Utah, have enacted a total to date of 32 measures that directly restrict abortions, per NARAL Pro-Choice America. Since 1995, 755 anti-abortion measures have been passed and 87 percent of all American counties do not have an abortion provider.
This escalation of anti-abortion rhetoric and action, interestingly enough, is not supported by the anti-abortion community. The largest anti-abortion groups, including the National Right to Life, Americans United for Life and the Roman Catholic Church have all waved off any support of the recent rash of anti-abortion legislation, speaking of their futility under current law. These groups, instead, are focusing on stricter requirements for providers and a lowering of the fetal viability threshold. Republicans in battleground or blue states have backed away from this campaign as well, fearing a major backlash in the 2014 and 2016 elections. In the 2012 election, 8 out of 10 women polled felt that abortion and women’s rights were the most important issue being considered, making many question the wisdom of the strategy.
This policy reflects the hard line the Republicans took in their 2012 platform:
“We renew our call for replacing ‘family planning’ programs for teens with abstinence education, which teaches abstinence until marriage as the responsible and respected standard of behavior. Abstinence from sexual activity is the only protection that is 100 percent effective against out-of-wedlock pregnancies and sexually-transmitted diseases including HIV/AIDS when transmitted sexually ( … ) We oppose school-based clinics that provide referrals, counseling, and related services for abortion and contraception. We support keeping federal funds from being used in mandatory or universal mental health, psychiatric, or socio- emotional screening programs.”
However, this “out of sight, out of mind” strategy is putting Republicans in a position in which they are seen as being out of touch with their constituents, and even uninformed of the realities of their own policies. For example, for most of the abortion clinics affected by a version of the hospital-standards requirement laws that have been passed in 26 states — arguably, to reduce the danger to the patient — only a handful actually closed. In Pennsylvania, of the 24 clinics affected by the state’s abortion clinics law, one closed voluntarily and two were closed due to health violations. Most facilities simply invested money into bringing their facilities into compliance.
“What is frustrating to us, as physicians, are rules coming out in Texas and other states that are catching on like crazy but are not medically based. They are to shut down abortion facilities,” said Dr. Anne Davis, consulting medical director with Physicians for Reproductive Health. As reported by the Guttmacher Institute, abortion is the safest surgical procedure performed in the United States, with a complication rate less than 0.5 percent.
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