Why TAL Doesn’t Recommend a Ban on Discrimination Abortions

The Texas Legislature is currently considering HB 2434 by Rep. Matt Schaefer and SB 1033 by Sen. Kelly Hancock, identical bills to ban “discrimination” abortions. This bill would ban abortions throughout pregnancy, including the first and second trimesters if the motive is “based on the race, ethnicity, sex, or probability of a diagnosis of or of having a disability.” While we strongly sympathize with the authors’ goal to protect unborn children from abortion, we are not recommending the Legislature pass this bill.

If enacted, the bill would set back, not advance, the pro-life movement. It will not survive a federal court challenge and will save no lives. The result will be more bad precedent and huge attorneys’ fees for the plaintiffs.

Not Recommending HB 2434/SB 1033

We note that we are not opposing HB 2434/SB 1033. On our website, we describe bills of interest in three categories: “Bills We Recommend to the Texas Legislature,” “Bills We Are Not Recommending,” and “Bills We Oppose.” The distinction between the latter two, common inside the Capitol, is recognized by legislators and is also used by any number of issue groups. Furthermore, we base our scorecard on votes on Bills We Are Recommending and Bills We Oppose, but not on Bills We Are Not Recommending.

Banning Abortions on Non-Viable Babies

The reason we do not support and do not recommend HB 2434/SB 1033 is that its ban on abortions of non-viable babies will not survive a federal court challenge, resulting in a significant setback to the pro-life movement.

Since the passage of HB 2 in 2013, Texas has banned virtually all abortions after 20 weeks (measured post fertilization) which corresponds to 22 weeks of gestation (measured from the first day of the mother’s last menstrual period).

Viability for a healthy baby born in an excellent institution is generally recognized as beginning at 21 weeks post fertilization (23 weeks gestation). In other words, Texas has already banned all post-viability abortions, including abortions on babies with disabilities (e.g., Down syndrome, spina bifida, and cleft palate) as well as abortions for sex or race.

The real issue is whether HB 2434/SB 1033 would survive a federal court challenge as applied to abortions performed on unborn babies before 20 weeks, all of whom are pre-viable, including abortions on babies in the first trimester (before 12 weeks) and the early second trimester.

Federal Court Precedent

Current Supreme Court precedent, as defined in Roe v. Wade (1973) and Planned Parenthood v Casey (1992), prohibits states from banning or limiting abortion by imposing an “undue burden” on a woman seeking a pre-viability abortion. In Casey, the Court wrote, “A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” Also in Casey, the Court defined viability as “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb.”

Recently, the State of Indiana banned abortion for those same reasons. The federal district court struck that ban down and the 7th Circuit Court of Appeals affirmed that decision in Planned Parenthood of Indiana and Kentucky v. Commissioner of Indiana State Department of Health (2018). The Court wrote:

The non-discrimination provisions clearly violate well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.

Thus, clear Supreme Court precedent dictates that states may not — for any reason — protect unborn babies who are not viable from abortion. While this precedent is extremely unjust and inconsistent with modern science, it has required lower courts to prevent enforcement of countless pro-life laws in the 46 years since Roe.

Severe Fetal Abnormality

Part of HB 2434/SB 1033 removes an exception to the current 20-week ban that allows abortions on babies with a “severe fetal abnormality.” As defined in Texas law, these babies are not disabled; they are terminally ill with rare conditions like anencephaly (a lethal condition in which the baby lacks a brain and cranium above the base of the skull). 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. These babies are not viable and cannot live outside the womb even with the best medical attention.

Sadly, Supreme Court precedent also prevents states from protecting babies with “severe fetal abnormality” from abortion for the very same reasons states may not protect healthy babies prior to 23 weeks of gestation.

Overturning Bad Precedent

We all hope for the day when the Supreme Court overturns the terrible precedent of Roe and Casey and allows states to restore protection to unborn babies throughout pregnancy. The near term prospects look dim. The Court has had numerous opportunities in the current term and has declined repeatedly.   

• In the Indiana case discussed above, the State of Indiana has asked the Court to review the 7th Circuit’s order. In its current term, the Court has declined the opportunity to act on the certiorari petition to taking the case 11 times  in Box v. Planned Parenthood.
• Also, the Court has conspicuously not decided whether to take the case involving the challenge to Alabama’s ban on “dismemberment abortions” in Harris/Marshall v. West Alabama Women’s Center.
• In two cases involving states’ attempts to disqualify Planned Parenthood as a Medicaid provider, the Court denied the certiorari petitions from Kansas (Andersen v. Planned Parenthood) and Louisiana (Gee v. Planned Parenthood). That allowed lower court decisions to stand that kept Planned Parenthood receiving funds in those states’ Medicaid programs.
• In February the Court stopped the implementation of a Louisiana law requiring abortion doctors to have privileges at local hospitals. The Court awaits a certiorari petition challenging the ruling of the 5th Circuit that allowed the law to go into effect. The majority gave no indication of whether they would take the case. The case is June Medical Services v. Gee.
• Our Special Counsel Paul Benjamin Linton writes about how the addition of Justice Kavanaugh might affect the Court. Given Justice Kavanaugh’s view of the role of precedent, Mr. Linton has some doubts that Justice Kavanaugh would be willing vote to overrule Roe. But even if Justice Kavanaugh were willing to do so, Chief Justice Roberts, in Linton’s judgment, is not likely to cast the fifth and decisive vote to overrule Roe.

The Cost of Defeat

Losing abortion cases in court substantially weakens the pro-life cause and strengthens the abortion industry. The parts of HB 2434/SB 1033 that ban abortion on babies who are not viable would not survive a federal court challenge. The result would be more bad precedent, which we do not need.

The bad precedent of a loss will be used to strike down more pro-life laws in Texas and other states. The 2016 loss in Whole Woman’s Health v. Hellerstedt in which the Supreme Court struck down safety regulations at abortion facilities has been used to strike down a number of laws in other states. It is heartbreaking to see that happen in state after state.

A loss in federal court will also result in thousands or millions of dollars paid by the State of Texas to the plaintiffs for their attorneys’ fees, as required by federal law, thus strengthening the abortion industry and the organizations that represent them in court, including the ACLU and the Center for Reproductive Rights. In Hellerstedt, Texas may be required to pay $4 million or more to the attorneys for the plaintiffs, including the Center for Reproductive Rights whose annual income is $1.5 million.

Compelling Public Testimony

Panels in the Senate and House held public hearings on the bills. The public responded with dozens of individuals and families giving hours of compelling, heart-string-tugging testimony. For example, present were parents of children with Down syndrome who are glad they did not choose abortion because their children’s lives have immeasurable value. A woman with spina bifida testified about how doctors would have recommended abortion for her had they diagnosed her condition before birth and how much she is grateful to be alive. Likewise, parents of unborn babies diagnosed with terminal conditions who gave birth to the children spoke of the value of their babies and to their choice of choosing childbirth over abortion.

We could not agree with each of them more. Texas Alliance for Life never recommends or condones abortion in these cases, and our goal is for all unborn children to be protected from abortion throughout pregnancy regardless of the child’s ethnic background, sex, disability, or terminal condition.

Other Aspects of the Bill

We note that certain aspects of the bill would be untouched by the federal courts, including the 24-hour waiting period (which Texas has required since 2003) and information regarding palliative care (which many hospitals already provide).

These aspects of the law could and should have been offered in a separate bill, and we would support such a bill. When we made that suggestion to the House author, Rep. Schaefer, he rejected it. Unfortunately, the deadline for introducing new bills this session has passed.

We also point out that the part of the bill that creates a criminal offense (Class A misdemeanor) for forcing a woman to have a discrimination abortion is already law. In the last session, the Legislature passed HB 2552 that, among other provisions, created a third-degree felony offense for assaulting a pregnant woman to force her to have an abortion. This applies to any abortion.

We hope that in coming years there will be enough votes on the Supreme Court to uphold a bill like this. Even better, we hope for the day the Supreme Court overturns Roe and allows states to protect all unborn babies. Unfortunately, for the time being, what this law strives to do, while well-intentioned, is just not possible.