By Joe Pojman, Ph.D., Executive Director

Representative Ernest Bailes is a pro-life champion.

State Representative Ernest Bailes from House District 18 is a pro-life champion with an outstanding voting record, supporting all 10 pro-life bills passed in 2017. We urge voters to support Ernest Bailes for re-election and send him back to Austin so he can continue to protect unborn babies and their mothers from abortion.

Unfortunately, Representative Bailes is being unfairly attacked by a Houston-based organization for a principled vote on a measure related to unborn babies with fetal abnormalities so severe they are fatal. That measure was unsuccessful in the House and was not even attempted in the Senate. It had no chance of surviving a federal court challenge because of long-standing Supreme Court precedent and would have saved no lives from abortion. The abortion law firm that would bring the case would probably receive hundreds of thousands of dollars in attorneys’ fees that could then be used to strike down pro-life measures across the nation. This attack is highly unfortunate and serves only to exploit the tragedy associated with babies with those very rare conditions.

The abortion of an unborn child is always tragic. This is true even when the child has a disability so severe that the baby is not viable and will not be able to live outside the womb. Thankfully, the number of abortions for cases of “severe fetal abnormality” are extremely rare after 20 weeks, occurring at most 16 times a year in Texas.

The position of Texas Alliance for Life is clear and consistent. We do not support abortions on babies with disabilities, even those with severe abnormalities. Doctors should never deliberately take the life of an innocent unborn child. We want to protect every unborn child, and we support laws that will do that to the greatest extent possible.

Ernest Bailes Is Solidly Pro-Life

Representative Ernest Bailes is a good and decent Christian family man with a solid pro-life record.

During his first year in the Legislature in 2017, Representative Bailes voted for of all 10 pro-life bills that were passed. It was truly a sensational session for pro-life advocates, and more importantly, for the babies and vulnerable patients. See our Pro-Life Accomplishments of the 85th Legislature for a full description. But to highlight a few:

  1. SB 8 shuts down Planned Parenthood’s trafficking of baby body parts by banning partial-birth abortion, banning all research on the tissues and organs from aborted babies, and requiring the humane disposition of the bodies of babies who die from abortion rather than allowing the bodies to be ground and flushed into a sewer system,
  2. HB 2552 further protects victims of sex trafficking by making it a crime to force a woman to have an abortion and creating a first degree felony (life sentence) for killing an “unborn child” of a minor girl who is a victim of sex trafficking (pimps frequently force their enslaved girls to have abortions),
  3. HB 214 eliminates mandatory coverage for elective abortion in health insurance plans in Texas.
  4. SB1 doubled the budget for the state’s Alternatives to Abortion program that funds more than 100 pro-life pregnancy resource centers across the state, and
  5. SB 1 continues to DEFUND Planned Parenthood.

Joint Author of the Most Important Pro-Life Bill in 2017

The life issue is very dear to the heart of Earnest Bailes, so much so that he volunteered to be a “joint author” of HB 200, the House companion of SB 8. That means whenever, HB 200 was printed and distributed, the name “Bailes” was on the top. SB 8 / HB 200 was considered to be the most important pro-life bill passed in 2017.

To say that Ernest Bailes is anything but pro-life is dishonest and false.

The Amendment that Would Have Saved No Lives

In May 2017, an amendment was offered to SB 8 on the House floor that would have removed a narrow exception to the 20-week ban that allows abortions on unborn babies with a “severe fetal abnormality.” The amendment did not pass. (The Texas Senate did not pass a similar measure even though they had ample opportunity to do so.)

The amendment would likely not have saved a single baby from abortion. It could not have survived a challenge in federal court at this time.

An unborn baby with a “severe fetal abnormality” is not viable and cannot live outside the womb even with the best medical attention. These are tragic cases when the developing baby has a fatal condition that will cause the baby to die before birth or shortly after birth. For example, anencephaly is a lethal condition in which the baby lacks a brain and cranium above the base of the skull, leading to death before or shortly after birth. Another condition is renal agenesis, in which the baby has no kidneys and likely no lungs, again, leading to death before or shortly after birth.

It is important to note that this exception currently in law does not allow abortions after 20 weeks on unborn babies with Down syndrome, spina bifida, cleft palate, and other non-fatal disabilities.

The Amendment Could Not Survive a Federal Court Challenge

The amendment could not survive a challenge in federal court at this time. It violates 45 years of Supreme Court precedent by banning abortions on babies who are not “viable.” In the court’s opinion striking down portions of HB 2, the court explains this “viability” standard:

[W]e now use “viability” as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health.

See Whole Woman’s Health v. Hellerstedt in which the Supreme Court struck down two portions of HB 2.

Viability can begin as early as 21 weeks post fertilization for a healthy child born in an excellent medical facility. However, for a child who has a severe fetal abnormality as defined in current law, he or she will never achieve viability. Sadly, Supreme Court precedent prevents the State of Texas from protecting such a child from abortion.

If challenged, the federal courts would not only strike it down, adding to the terrible precedent upholding Roe v. Wade, the State of Texas would be obligated under federal law to pay the attorneys’ fees for the abortion providers who challenge the law. For example, in the challenge to HB 2, which Texas lost in the Supreme Court in 2016, the attorneys for the abortion providers will get as much as $4,500,000 from the State of Texas.

Extremely Rare

Abortions for “severe fetal abnormality” are extremely rare, making up at most 16 (0.03%) of the 55,287 abortions performed in Texas according to 2015 figures from the Texas Department of State Health Services. Some or all of those sixteen could have been abortions to save the life of the mother (which falls into the same reporting category), and would not have been affected by the amendment.

Texas Right to Life’s “Severe Fetal Abnormality” Exception

Texas Right to Life has criticized Ernest Bailes for his vote to table the amendment to remove the rarely used exception to the 20-week ban, the “severe fetal abnormality” exception. But the reality is that Texas Right to Life created, endorsed, and claimed credit for the exception that they now use to criticize Representative Bailes.

The very severe fetal abnormality exception Texas Right to Life uses as a reason to oppose Ernest Bailes’s re-election today is the same language they took credit for and praised in 2011 and supported again in HB 2 in 2013. They have never explained this hypocrisy.


The exception was first introduced into Texas law in 2011. A Medicaid reform bill, SB 7, included a provision to ban county funding for abortions. That ban included the Texas Right to Life “severe fetal abnormality” exception:

… a life threatening physical condition that, in reasonable medical judgment, regardless of the provision of life saving medical treatment, is incompatible with life outside the womb.

See Health & Safety Code, Sec. 285.202(a-1).

Texas Right to Life gave the exception high praise. They described the exception on their website in glowing terms, indeed claiming ownership, in an article called “Texas Right to Life plugs abortion loopholes in healthcare bill”:

… language from Texas Right to Life was inserted, making clear that all life is precious and deserves protection, even unborn babies with disabilities.

Two years later in 2013, the Legislature passed HB 2. That bill had a ban all abortions after 20 weeks, again with high praise from Texas Right to Life. HB 2 did, however, contain this “severe fetal abnormality” exception language that would have been removed from the 20-week ban by the amendment to SB 8.

Political Stunt

One wonders if the goal of Texas Right to Life’s support of the amendment to SB 8 was sound public policy or rather a political stunt designed to unfairly harm the excellent pro-life reputation of Representative Bailes?

And if that isn’t bad enough, does it not exploit the tragedy of those parents who grieve from the loss of a child with severe fetal abnormalities?

We strongly encourage voters to re-elect Ernest Bailes for State Representative.

Pol. ad. paid for the Texas Alliance for Life PAC