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Texas Senate approves legislation banning most abortions, testing Roe v. Wade

Madlin Mekelburg
Austin American-Statesman
Abortion abolition protesters gather Tuesday in the Capitol Rotunda after the Texas Senate approved six measures to restrict the procedure. The protesters were at the legislature in support of House Bill 3326, which would prohibit abortion.

The Texas Senate approved six anti-abortion bills Tuesday, including a proposal that would outlaw the procedure once a fetal heartbeat is detected, which is typically before a woman is aware she is pregnant, and another that would effectively ban the procedure completely.

The second measure would become law if the Supreme Court reverses earlier decisions legalizing abortion. Abortion opponents have pledged to push an aggressive agenda to severely limit availability of the procedure, with an eye to the changing power dynamics at the U.S. Supreme Court, where conservatives now hold a 6-3 majority.

“As we debate this, we start in different places,” said Sen. Angela Paxton, a Republican from McKinney and the author of the proposal to outlaw abortion. “The life of the mother is incredibly important, as is the life of the unborn child. It’s a difficult situation. It’s a difficult situation for the woman to be in, it’s a difficult situation for ... a child who is at the most vulnerable time in their existence and has no ability to protect themselves.”

More:Texas abortion opponents vow a major push in 2021. 

State Sen. Carol Alvarado, D-Houston, speaks Tuesday against the anti-abortion Senate Bill 9 in the Senate chamber.

The chamber approved five of the bills 19-12, with all Republicans voting in favor, along with one Democrat, Sen. Eddie Lucio Jr. of Brownsville. A sixth bill passed 20-11, with two Democrats supporting it.

The measures now head to the House for consideration. They are among the first bills debated and passed through the Senate, and two are top priorities of Lt. Gov. Dan Patrick, the Republican leader who presides over the chamber.

"Texas is a pro-life state and this legislation reflects our continued commitment to protecting the most vulnerable. I look forward to this lifesaving legislation being signed into law," Patrick said in a statement.

Dyana Limon-Mercado, executive director of Planned Parenthood Texas Votes, said this kind of "extreme political agenda is not what Texans need or want right now."

"Texans are still recovering from a deadly natural disaster in the middle of a pandemic while Dan Patrick and some in the Legislature are wasting time trying to ban abortion, further jeopardizing people's well-being," she said in a statement.

More:Texas Senate approves sweeping bill to address power grid failures

Heartbeat bill

Senate Bill 8 would ban abortions when a fetal heartbeat can be detected, which typically happens around six weeks into a pregnancy. Texas law currently bans abortions after 20 weeks of pregnancy — or up to 22 weeks from the last menstrual period.

Sen. Bryan Hughes, R-Mineola, left, talks to Lt. Gov. Dan Patrick after Hughes’ Senate Bill 8, which would ban abortions when a fetal heartbeat can be detected, passed the Senate on Tuesday.

Democrats pushed Sen. Bryan Hughes, R-Mineola, to defend the constitutionality of his proposal, arguing that the bill would effectively ban all abortion procedures, as a fetal heartbeat can be detected before a woman knows she is pregnant.

“Effectively, you’re telling women who right now have a constitutional right to an abortion that in the event you might need one, you can’t have one,” said Sen. Nathan Johnson, D-Dallas.

Hughes said the intent of his bill is to protect “a little baby that can feel pain,” and he said he believes that it will be upheld by the courts.

“What we’re saying is that when there is a heartbeat present, the state of Texas is saying that’s a human being deserving of protection,” he said.

Several other states have adopted similar laws focused on fetal heartbeats, which have been blocked by the courts.

More:Judges greet arguments against Texas abortion law with skepticism

The bill also would allow for any private citizen to sue an abortion provider who violates the law or who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” including footing the bill for the procedure, regardless of whether the citizen behind the lawsuit is connected to the person receiving the procedure or to the provider.

Johnson questioned whether the bill would create a situation allowing an individual from anywhere in the state to target a provider and file suit, eventually putting them out of business because the minimum damages afforded in the bill would be $10,000 for a violation.

“This is a private, personal, legal, constitutionally protected behavior, and we’re setting loose an army of people to go sue somebody under a bill that will likely be held unconstitutional,” Johnson said. “They could be sued over and over and over again, having to pay $10,000 every single time and for years, while it winds its way through the courts, they can’t defend themselves, so effectively you have shut down their medical practice.”

State Sen. Bryan Hughes, R-Mineola, right, congratulates state Sen. Eddie Lucio Jr., D-Brownsville, after the Senate approved Senate Bill 8 on Tuesday, with all Republicans and Lucio voting in favor.

Outlawing abortion

Another Patrick priority is SB 9, called a “trigger ban” by some, which would prohibit most abortions. But the prohibition would only go into effect if the Supreme Court overturns two prior decisions establishing a legal right to an abortion: Roe v. Wade and Planned Parenthood v. Casey.

The bill, authored by Paxton, would create a criminal offense in the event that an abortion provider attempts to perform the procedure, which would be a second-degree felony. If the abortion is successful, it would be a first-degree felony. 

It also would allow for a fine of at least $100,000 for doctors who perform the procedure.

More:Texas Senate panel weighs banning abortion in 2021

Abortion opponents demonstrate Tuesday in the Capitol.

Sen. Carol Alvarado, D-Houston, said the bill goes too far.

“If you research states that have the strictest, strongest laws on abortion, Texas is always in the top,” she said. “Every session it seems like there’s more that y’all come up with to do, and I just don’t know where it stops, I just don’t know where it ends.” 

The other approved bills include:

  • SB 394, filed by Lucio, which would prohibit pill-induced abortions after seven weeks of pregnancy. The Food and Drug Administration, which regulates the medication, allows for the use of abortion pills up to 10 weeks into a pregnancy.
  • SB 802, sponsored by Paxton, would require doctors to direct a person seeking an abortion to speak with a state contractor for counseling and other resources prior to the procedure. A fiscal note attached to the bill states that it would cost roughly $7 million annually for the state’s Health and Human Services Commission to establish and maintain the hotline required in the bill.
  • SB 1173, from Sen. Kelly Hancock, R-North Richland Hills, would prohibit abortions after 20 weeks of pregnancy in cases when a severe fetal abnormality has been detected, which is currently allowed under state law. Abortion rights advocates say that the bill would require people to carry pregnancies to term
  • SB 1647, which combines the provisions of SB 8 and SB 9.