Texas Republicans Are Still Trying to Chip Away at Abortion Rights

Last session, the GOP-dominated Legislature successfully decimated abortion access across the state. We're still waiting on the federal Fifth Circuit Court of Appeals to make a decision on the legal challenge to HB 2, which Wendy Davis famously filibustered before Rick Perry called a second special session to pass the bill, ushering in sweeping restrictions that have already closed more than half of abortion clinics in Texas.

Depending on how things shake out at the Fifth Circuit, there could soon be as few as eight abortion clinics for a state of 27 million people. About one million Texas women would live at least 150 miles away from the nearest abortion provider, effectively cutting off access for poor women who don't live in one of the state's urban areas.

Poor women who want an abortion? Check. Next on the list for Texas Republicans: Cutting off access to vulnerable teenagers and women who seek an abortion under incredibly dire circumstances.

Twice this month committees have heard bills drafted by Republican lawmakers to greatly restrict the process known as judicial bypass, in which minors can petition a judge to get an abortion if either their parents won't consent or if the girls have reason to fear for their safety. Then, in an unexpected move on the House floor Thursday, a Republican lawmaker successfully crammed language into an unrelated bill that would end the exception to the state's ban on abortions after 20 weeks if it's discovered a fetus has severe abnormalities — medical conditions that aren't typically detected until later in a pregnancy.

For pro-choice advocates, the hits just keep on coming at the Lege. "HB 2 devastated access to safe and legal abortion across the state, but that wasn't enough for the anti-choice zealots in the Texas Legislature," Heather Busby, executive director of NARAL Pro-Choice Texas, said in a statement earlier this month. "Now they're trying to pile on even more regulations and restrictions that would make access to a safe and legal medical procedure almost impossible for many Texans to obtain."

Earlier this month, a House committee heard a bill from Rep. Phil King, R- Weatherford, that abortion rights advocates warn would make judicial bypass impossible for many pregnant teens.

Anti-abortion groups paint judicial bypass as a radical step that undercuts parental rights — groups like Texas Right to Life call it a legal loophole that's "exploited by the abortion industry," claiming sympathetic attorneys often volunteer to shepherd minor girls through the courts for "secret abortions."

Pro-choice advocates, however, say that criticism ignores the very difficult circumstances under which girls approach judges to get an abortion. Groups like Jane's Due Process, a nonprofit that helps provide legal representation to pregnant minors in Texas, say girls who approach them are either de-facto orphans (say, with an absent father, a mother in jail, and with guardianship rights never established for a grandmother or aunt who's cared for them for years) or live in a volatile, violent environment.

Consider the testimony from one of the first judicial bypass cases ever appealed all the way up to the Supreme Court of Texas, involving a 17-year-old "Jane" who told the court she was afraid to tell her alcoholic father about her pregnancy. The girl said her father beat her younger sister for small infractions, like wetting the bed. She once saw her father punch another sister so hard that blood splattered on a nearby wall — "little things make him snap," she testified. As for her mother, she'd told the girl "if I was ever pregnant, I might as well not come home. I'd have no place to stay."

Pro-choice advocates say Texas's current law outlining the judicial bypass process has already been crafted to ensure girls aren't getting judge-approved abortions simply because they're afraid their parents might be mad upon finding out they're pregnant — simply having your cell-phone privileges taken away or being worried you might be grounded isn't enough to sway a judge under current law. The 1979 U.S. Supreme Court case that led to the judicial bypass process itself made sure to balance two competing interests — while parental rights should be protected, according to the court ruling, parents shouldn't be allowed to exercise an "absolute, and possibly arbitrary veto" over a girl's choice to terminate her pregnancy. The courts had to provide an escape hatch for girls in pressing circumstances.

As it stands, girls have to prove one of three things in court: that they're already "mature and sufficiently well-informed" to make the decision without a parent or guardian; that notifying the girl's parents would not be in her best interest; or that there's clear evidence the girl could face physical, sexual, or emotional abuse if she told her parents about her pregnancy.

King's bill would, among other things, require that a minor prove all three grounds under the law, rather than just one. Rep. Jessica Farrar, a Houston Democrat, challenged King's bill in committee. "What we're really getting at isn't the teen who can't talk to their parent," Farrar said. "It's the parent whose incarcerated, the parent who's absent. ... We're talking about really tough cases."

King — after erroneously stating that attorneys in judicial bypass cases are "often paid by the abortion provider" (it's the state that pays for legal representation in such cases) — said judicial bypass should only be an option when there's threat of abuse. (Fellow Republican Rep. Matt Krause wants to take that one step further, filing a bill that removes the threat-of-emotional-abuse language from the statute.)

On Wednesday, the House State Affairs Committee heard another bill, this one by Victoria Republican Rep. Geanie Morrison, that would, among other things, increase the burden of proof girls need to show in court and force girls to seek a court order in their county of residence. Morrison told the committee she aimed to "improve the protection of the minor girl and ensure that parental rights are protected," Morrison said. (Both Morrison and King's bills are still pending in committee.)

That county-of-residence provision presents a couple of problems, says Tina Hester, executive director with Jane's Due Process. First, she says the group's own surveys of county clerk offices across the state show many provide either incorrect information about the process or flat-out refuse callers seeking information on a judicial bypass. Hester says the the bill also creates a huge confidentiality problem for already-vulnerable girls.

"The whole purpose of the bypass process is to create a safeguard for abused or abandoned teens who cannot safely inform a parent of an unwanted pregnancy. When she is forced to go to her local courthouse where people may know her, the law loses its purpose," she said.

Hester added: "Last session, the lawmakers targeted the medical community and abortion providers. This session they have their sights on pregnant young women," Hester added.

Well, not just pregnant young women.

On Thursday, Rep. Matt Schaefer stunned observers when he offered a measure that would end the 20-week abortion-ban exception for women carrying fetuses with severe abnormalities; Schaeffer, a Republican from Tyler, shoe-horned the amendment into an unrelated bill.

Amid criticism from some House colleagues, Schaefer acknowledged that parents who discover late in a pregnancy that a fetus has severe abnormalities are often grieving and a face a difficult decision. That shouldn't matter, Schaeffer said. Because of the Bible. Pain and hardship, Schaeffer told the House, are "part of the human condition, since sin entered the world. We should value what God values, and that's the life of the unborn."

State Rep. Trey Martinez Fischer, a Democrat from San Antonio and master of minutiae when it comes to House rules, effectively stalled the bill on a point of order after Schaeffer's anti-abortion amendments sailed through. That bill now has to make another pass through committee.

Schaeffer, however, clearly isn't backing down from what he sees as a righteous cause. He posted on his Facebook page last night:

"Fetal abnormalities should not justify taking the life of unborn babies. Unfortunately, Texas law allows that. Today we tried to end the practice of aborting babies with disabilities. By God's grace we won a couple battles on the House floor. But the fight to defend life continues."

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Michael Barajas
Contact: Michael Barajas