It just wouldn’t be a 21st-century Texas legislative session without a needless, hours-long incursion into the wombs of Lone Star women. And if you think it’d be hard to restrict abortion access any further than what was accomplished in 2013, when, despite-then state Sen. Wendy Davis’ filibuster and a flurry of international attention, state legislators passed laws that banned abortions after 20 weeks and effectively shuttered all but eight abortion clinics in the state — well, you’d be right. It is hard, but not impossible, as proved by last night’s passage of House Bill 3994.
As we mentioned earlier this week, the bill, which still needs to clear the Senate, sharply curtails the ability of minors to get an abortion without parental consent. The Texas GOP’s latest federal arch nemesis, a little governmental branch called the Supreme Court of the United States, ruled in 1979 that states had to provide judicial bypass for girls in such dire circumstances they would fear abuse or other serious trauma should their parents discover an unwanted pregnancy, so a full-on ban is forbidden. Instead bill authors, including Victoria Representative Geanie Morrison, Rep. Greg Bonnen of Galveston County and self-appointed Most Valuable Fetus Defender 2015 Rep. Matt Krause, sought to tighten up the judicial bypass bill passed by the Republican majority in 1999.
Back in 1999, that bill was good enough for George W. Bush to campaign for president on, as Houston’s Rep. Sarah Davis noted during the bill’s
third *second reading on Wednesday. It required young women to retain a lawyer and prove to a judge that they were mature and informed enough to decide to undergo an abortion, that informing their parents of the pregnancy or abortion would not be in their best interest, and/or that there was a preponderance of evidence suggesting to the judge that the minor in question would face physical, emotional, or sexual abuse. This hearing could be held in any Texas county, and the judge had to render a decision by 5 p.m. the next business day, in keeping with SCOTUS’s requirement that the bypass process be handled expediently. If a judge did not hear the case by that deadline, the request was considered approved.
That was then. According to bill co-author Rep. Phil King, also a co-author of the 1999 bill, the Republican-held house of the 1990s just wasn’t conservative enough, leading to concessions regarding judicial bypass. Now, with strident pro-lifers outnumbering anyone else under the Pink Dome on an almost two-to-one basis (judging by last night’s votes), the timing's right to get down to business.
That business meant limiting a minor's access to judicial bypass to the county in which she lived or in which she sought the abortion (unless she lived in a very small county, in which case she could seek the bypass in the neighboring county); extending the amount of time a judge had to hear the case from two days to five business days; reversing the presumption of judgment in cases not heard from granted to not-granted; compiling an annual report of all the courts that received such requests and the disposition of those hearings; and requiring stricter evidence that the minor met the three previously mentioned requirements for avoiding informing her parents of pregnancy and abortion.
A physician cannot perform an abortion in Texas on a minor without parental consent or judicial bypass. And perhaps most curiously, this act also requires that a physician presume a woman seeking an abortion is a minor unless she presents government identification proving otherwise. As some legislators pointed out on the floor, this matters not only for younger minors (the average age when a girl can be impregnated is 11 in this country) and undocumented immigrants but also for the population GOP lawmakers profess to care about almost as much as the unborn: victims of sex trafficking. Plus, as Representative Donna Howard said on the floor, “I take offense to women being treated like children, and having to prove [that they aren’t] with I.D.”
In a replay of (failed) strategy from 2013, pro-choice lawmakers attempted to sink the bill with an avalanche of amendments. Among the nearly 20 proposed changes heard on Wednesday were those that would exempt the following populations from these more stringent requirements: victims of rape, incest and sexual abuse; orphans and de facto orphans; minors who are already parents; and high school (or equivalent) graduates. All those amendments failed, as did one allowing a school ID to be allowed if a government ID was not available. And despite previous committee testimony from judges objecting to their courts being listed on an annual report for fear it would lead to the same type of retaliatory violence as seen at abortion clinics and the homes of abortion providers over the years, an amendment from Rep. Mary Gonzalez striking down that provision also failed.
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The hours-long amendment proceedings were for naught, as Rep. Morrison had indicated when she said she would not be considering changes or taking questions after presenting the bill and rather promptly disappeared. As the night wore on, the few bill supporters who cared enough to remain present and engaged (many amendment authors complained of chatter and inattention) seemed doggedly attached to Krauss’s characterization of these judicial bypass seekers as remorseful teens looking to avoid getting grounded by mom and dad for getting knocked up after a kegger.
Yet, Jane’s Due Process, a group that represents pregnant minors in Texas, says they only receive 200 to 300 requests for judicial bypass a year. Both JDP and NARAL Pro-Choice Texas describe this population of young women as “vulnerable,” “abused” and “neglected.” Tina Hester of Jane’s Due Process said in a statement, “Though most teens do involve a parent in their pregnancy decision, not every teen is so fortunate to be able to do so safely.” In a memorable exchange between Representative Chris Turner and Rep. Krause about how a young woman might appeal a judge denying judicial bypass for lack of proof of abuse, Turner asked, “How much worse does it need to get before they can go back and get a judicial bypass?” He then added, “sometimes [the minors] end up dying, and they can’t come back.” At one point Krause mused, “I think you always want to have a presumption in favor of life.”
Unless of course that life belongs to a young girl in trouble.
*After preliminary approval Wednesday night, the House is expected to vote on HB 3994 for a third and final time Thursday. Stay tuned for updates.