Lawmaker wants to position Texas to outlaw abortion with ‘trigger law’

By Nicole Cobler | Feb. 3 2017

AUSTIN – State Sen. Bob Hall is playing the long game on abortion.

To date, more than two dozen bills relating to abortion have been filed in the Texas Legislature, most aimed at restricting the controversial procedure. Hall, however, has gone a step further and authored a bill to create a constitutional amendment to prohibit abortion “to the fullest extent authorized under federal constitutional law as interpreted by the United States Supreme Court.”

The Republican senator from Edgewood is looking forward to a conservative U.S. Supreme Court he hopes will overturn the 1973 Roe v. Wade ruling that made abortion legal in the United States.

Other states have attempted similar approaches by passing “trigger laws,” that would go into effect if Roe v. Wade were overturned. According to the Guttmacher Institute, a research organization that supports abortion rights, 19 states have laws that could be used to restrict the legal status of abortion. Four states – Louisiana, Mississippi, North Dakota and South Dakota – have laws intended to ban abortion automatically if Roe is overturned; eight others still have pre-1973 abortion bans on the books but do not enforce them. Eight states have laws that mirror Hall’s bill.

“I think there might be a real possibility that a Supreme Court in the near future just might overturn Roe v. Wade,” Hall said. “If they were to do that, then this would put in place in Texas that abortions would be illegal.”

The proposed constitutional amendment, SJR 9, would require a two-thirds super-majority vote in both chambers, and if approved, voters would have the final say on the change.

Similar bills were introduced in 2011 and 2015 but went nowhere.

‘Wishful thinking’

Carl Tobias, a law professor at the University of Richmond, said it was unlikely such a law ever would implemented even if Hall’s resolution is approved by lawmakers and voters, calling it “wishful thinking.”

He pointed to the U.S. Supreme Court’s ruling last June in Whole Women’s Health v. Hellerstedt, the lawsuit that successfully challenged provisions of Texas’ 2011 strict abortion law. Without Justice Scalia, the court reaffirmed Roe v. Wade, and struck down the Texas law’s strictest provisions by a 5-3 majority. Even had Scalia been alive, the result would have been the same, Tobias said.

“(Trump’s pick for justice) would just substitute for Justice Scalia, and that still doesn’t give you enough votes,” he said.

Among other anti-abortion bills filed in Austin this year are measures that would prohibit health insurance from covering the procedure and ban “dismemberment abortions.” One that has garnered the most attention would enable authorities to charge a woman who gets an abortion and the abortion provider with murder.

That bill’s author, Rep. Tony Tinderholt, R-Arlington, has been placed under Department of Public Safety protection after receiving death threats in reaction to the bill, according to his spokesman.

A spokesman for NARAL Pro-Choice Texas, which advocates for abortion rights, said the group is more worried about legislation that would reduce access or interfere with a doctor’s ability to make professional decisions about abortion than it is about Tinderholt and Hall’s bills to criminalize or outlaw the procedure.

“This constitutional amendment is a pretty unserious idea,” said Blake Rocap, the group’s legislative counsel. “It would basically have no effect because, guess what? The Supreme Court already said you can’t make abortion illegal.”

Many of the anti-abortion bills filed in the Texas Legislature are similar to legislation being drafted in states across the country, reflecting a national push by abortion foes and lawmakers to challenge Roe v. Wade or at least chip away at it in hopes that a fully-staffed conservative Supreme Court will uphold them.

Anti-abortion group Texas Right to Life, for example, has made its top priority a bill by state Sen. Charles Perry that would ban abortions in which a fetus is dismembered and removed “one piece at a time.”

According to National Right to Life, seven states have passed dismemberment laws. All have been challenged or have yet to take effect.

‘Challenge the logic’

John Seago, legislative director for Texas Right to Life, said the group had help from national groups to find the best bill to challenge Roe v. Wade.

Seago said the intent is not to overturn Roe v. Wade directly, but “challenge the logic” of the Supreme Court decision.

“This is the type of case we’d like to get into court,” he said. “We’re constantly having that conversation with our national partners.”

Joe Pojman, executive director for Texas Alliance for Life, said his group is backing away from pushing legislation that is likely to end up in court.

“We’re not recommending that the Legislature pass any bill that would not withstand a federal court challenge,” Pojman said. “This is not a good time to challenge Roe v. Wade. The outcome is predictable.”

He said the group often “looks at sample legislation” from Americans United for Life, an anti-abortion group that develops model legislation for state and national lawmakers. The organization has worked with Texas lawmakers, including former Gov. Rick Perry, for years to craft abortion regulations that have become law.

The most notable of those was House Bill 2 – the subject of last year’s ruling in Whole Women’s Health v. Hellerstedt – which required Texas abortion facilities to meet hospital-like standards and forced more than half of the state’s 41 abortion clinics to close its doors.

Americans United for Life acknowledged its role in H.B. 2 in 2015, saying the ambulatory surgical center standards became part of the bill “with the help of AUL experts.” That provision was one of the two struck down by the U.S. Supreme Court last summer. The other was a requirement that doctors who perform abortions have admitting privileges at nearby hospitals.

While Hall fights to push his constitutional amendment through the Capitol, he said he is less worried about the national anti-abortion movement.

“I really don’t belong to any of the national organizations,” Hall said. “My focus is on Texas and protecting the rights and liberties of the people in Texas.”

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