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I guess you could say that Texas giveth and Texas taketh away. For those too young to recall, Roe v. Wade was won in 1973 by two attorneys from the state, Sarah Weddington and Linda Coffee. What is less well-known is that from virtually the moment abortion became legal in all fifty states, lawmakers here, and their supporters among opponents of abortion rights, started chipping away at it. Half a century later, our legislature had passed some of the most restrictive laws in the nation—and that was before Roe fell. Now that the U.S. Supreme Court has taken Roe away, with a 6–3 majority in Dobbs v. Jackson Women’s Health Organization, Texas leaders opposed to reproductive rights seem almost delirious with the possibilities for further rollbacks of reproductive and sexual freedoms. Attorney General Ken Paxton’s office released employees from work early today to celebrate the court’s decision, declaring June 24 an agency holiday “to commemorate the sanctity of life.”
What could come next? Just about everything is on the table. Right-wing lawmakers in Texas are nothing if not creative. Abortion pills? Those were banned from sale last session (though enforcement mechanisms are unclear, as most such medications arrived by mail from other states and countries). Limits on contraception? You betcha. The same privacy rights that the Supreme Court overturned in the Dobbs case underlie what we have for decades considered the right to contraception and private sex acts between consenting adults—and, more recently, same-sex marriage. Indeed, as the 2022 Texas GOP platform cites “the humanity of the preborn child,” it also calls homosexuality “an abnormal lifestyle choice.”
District attorneys in conservative counties have said they stand ready to prosecute women seeking abortions and send them to prison for murder. A miscarriage could now be a death sentence for those whose doctors are averse to litigation or, worse, arrest. “It is kind of astounding that we are at a point where Roe will be overturned, but that won’t be enough,” says Democratic state representative Donna Howard, chair of the Texas Legislature’s Women’s Health Caucus. “The concern is that there will be those who will not only want to criminalize those who are seeking abortion but will use this as an opportunity to roll back access to contraceptive and other advancements that were made that the underlying privacy protection of Roe also supports.”
Those changes could come as soon as the 2023 legislative session. With Roe overturned, states are allowed to pass and enforce their own laws governing reproductive rights. Texas is one of thirteen states with a so-called “trigger law” that makes abortion illegal statewide within thirty days of a ruling overturning Roe. Governor Greg Abbott signed ours last July, asserting in a tweet that “the most precious freedom of all is life itself” and promising that “Texas will always foster a culture of life.” Under the law, doctors who perform abortions will be subject to a possible prison sentence and a $100,000 fine. There are no exceptions for helping women victimized by rape or incest—nor for women with nonviable pregnancies, those in which a baby will not be born alive. Only pregnant women with life-threatening conditions or who are at risk of “substantial impairment of major bodily function” are exempt.
Some supporters of abortion rights have suggested that President Joe Biden could issue some kind of executive action, citing the loss of abortion access as a public health emergency, which would allow the Justice Department to fight states that are planning to criminalize women who seek abortions in neighboring states—like, say, Texans driving to New Mexico, where abortion is expected to remain legal. But such an executive order would probably be futile, as it would eventually send the issue back into the courts that overturned abortion rights in the first place.
A more likely scenario is the one women’s health-care advocates have been preparing for since the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization last May: making some kind of order out of chaos. According to the Centers for Disease Control, more than 625,000 abortions were performed in the U.S. in 2019, a statistic that allows pro–abortion rights advocates to cite the procedure as part of normal health care. According to the Guttmacher Institute, approximately 55,440 abortions occurred in Texas in 2017, the last year for which figures were available. The question now is how to care for these women who still desperately want to end their pregnancies for the whole spectrum of reasons, from poverty to abusive partners to an already oversized family to the desire to complete work on a college degree. Logistics will be complicated—how does a someone seeking an abortion get from Dilley, Texas, to Albuquerque or Los Angeles or Wichita, and how long will her wait be, given the overturning of Roe? If the clinics are full, can she afford to pay a private doctor out of pocket? Who babysits her kids? Will she lose her job? How can she come up with airfare or pay for lots of $5 gasoline?
Various advocacy groups such as Fund Texas Choice, the Lilith Fund, and the Texas Equal Access Fund have already been raising money to help women pay for out-of-state abortions while trying to coordinate appointments with clinics in other states, many of which are already overwhelmed. (New Mexico has been slammed with Texas patients since legislators last session essentially outlawed abortion after six weeks.) “I think post-Roe there will be a greater emphasis on working strategically with other states,” Howard says. “It’s going to be extremely critical that we figure out how people who want abortions in states where it’s illegal can get abortions in states where it’s legal, without impacting that state’s capacity [to serve its own residents]. There are going to have to be some kinds of strategic plans.” And, possibly, lots more clinics.
In the meantime, some Republican legislators are working on ways to criminalize women who try to travel out of state for abortions. “My first reaction was, ‘Isn’t this America?’ ” says Howard. “ ‘How can they do that?’ ” But in fact, some opponents of abortion rights are currently researching ways to do just that. Even if these efforts fail, they would have a chilling effect: legal battles could drag on while clinics close for fear of litigation, and the cost of such fights would be extensive. Then, too, technology could come into play. The kinds of surveillance used to spot terrorists in airports could conceivably be used to photograph women crossing state lines for abortions. That notion might seem paranoid, but abortion advocates would suggest it’s not so far from where we are. “Since the 1970s, the ability of the state to surveil people [has increased],” said Elizabeth W. Sepper, a University of Texas professor of religious liberty, health law, and equality. Another open question: who might gain access to electronic medical records, credit card records, and travel records of, say, a pregnant woman suspected of lawbreaking (perhaps after a tip to police from an unfriendly neighbor or fellow office worker). A medical record today might easily be cross-checked with the purchase of a bus or plane ticket. “That is a big difference from the 1970s,” Sepper said.
Some legislators haven’t been willing to wait for hypotheticals. Republican state representative Tony Tinderholt of Arlington championed a bill in 2019 making it a capital crime for a woman to get an abortion. That means such women could face the death penalty, just as do those who kill police officers. Plano state representative Jeff Leach, also a Republican, had to get protection from local law enforcement after he tweeted that he would not let the bill leave his committee for a full House vote. It didn’t. But that was then.
State representative Briscoe Cain, of Deer Park, appears to have been emboldened by his success pushing voter suppression measures in the last legislative session. “The law of Texas is clear,” he posted on Twitter. “It is a crime to pay for another person’s abortion, punishable by 2 to 5 years imprisonment. Texas abortion funds and their donors are committing criminal acts by paying for abortions in Texas.” Next session, he has promised to submit legislation to prosecute “lawbreakers, and we will authorize district attorneys from throughout the state to prosecute abortion crimes when the local DA is unwilling to do so.” In a page taken from the Dan Patrick playbook, Cain has also announced that he will propose a bill to prevent companies such as Amazon and Citigroup, which have said they will pay travel expenses for employees’ out-of-state abortions, from doing business with the state. Fourteen Texas House Republicans have already signed a letter to the CEO of Lyft promising “swift and decisive” action if that ride-sharing company helps women get out-of-state abortions. Cain also posted cease-and-desist letters he sent to abortion funds, with a statement that certainly reads like a threat: “Abortion funds think they can flout the law because a local district attorney refuses to bring charges. We’ll fix this problem next session.”
Another front in the war against reproductive rights has to do with medication. RU486, the so-called abortion pill, was outlawed here last session for anyone more than seven weeks pregnant. So far, Texas women have responded by going online for their prescriptions. Sales of such products have soared; one company, Nurx, saw its online prescriptions from Texas jump 173 percent in September 2021, the month the law took effect.
But, as Sepper points out, “it can be really hard to distinguish contraception from abortion.” RU486 ends a pregnancy, which so far distinguishes it from Plan B, an over-the-counter medication that prevents fertilization and so far has not been the target of any legislation. But Sepper says the fall of Roe could change that. The right to abortion based on the Fourteenth Amendment’s right to privacy was enshrined in Roe; with the latter gone, could other privacy rights disappear too? “Maybe the Constitution doesn’t protect privacy in a body that can reproduce,” she says, suggesting a frightening hypothetical. “Bodily integrity and autonomy—those are the same issues with regard to abortion.” Those familiar with the abortion debate nationally may note that Supreme Court justice Alito has called intrauterine devices, or IUDs, an “abortifacient”—something that causes abortions.
A host of other unintended consequences are being predicted, not just for those who want abortions—but also for those who don’t. In May of this year, an Austin woman was suffering from an ectopic pregnancy—a fertilized egg had implanted in her fallopian tube instead of her uterus, an excruciating condition that can be fatal if it causes the tube to rupture. The woman’s doctor called in a prescription for a drug called methotrexate to bring on a miscarriage, but the pharmacist refused to fill it for fear of being sued under Senate Bill 8. As the Austin American-Statesman reported, pharmacists are terrified of lawsuits under SB 8 and the prison time mandated under SB 4. Already, at least one Austin pharmacy chain has stopped providing methotrexate for women with ectopic pregnancies, according to the Statesman, even though saving a woman from that condition is not considered an abortion under Texas law. Since the treatment for abortion and miscarriage is often the same, those who experience the latter—at least one out of ten pregnancies—can expect additional delays and, most likely, additional grief.
Then, too, women desperate for children through in vitro fertilization could be in for additional complications. Most couples and individuals going through the process fertilize more than one egg, and sometimes many more, in order to raise the odds of conception. So what happens to the extras now that abortion is illegal? Currently, it is legal to let the embryos thaw, which makes them no longer viable. But does that now constitute an abortion? Said Howard: “There’s no desire [of anti-abortion lawmakers] to think things through, to work with the medical community to determine what is really happening here and what the implications could be.” Legislative moves, she said, have been and will continue to be “based on ideology and not on science and evidence.”
Given the makeup of the current Legislature, Howard and others are not optimistic about a reclamation of reproductive rights anytime soon. Her focus, going forward, will be to try to “encourage the Texas Legislature to finally provide the necessary investments in health care for women and babies. We are going to be having all these additional pregnancies,” she says, pointing out that half the births in Texas are to mothers poor enough to qualify for Medicaid—318,000 in 2018—and that our leaders have long refused the federal funds that would come with expanding Medicaid. Federally qualified health centers run by the state are already overrun with patients seeking general care; few have the inclination or the ability to provide adequate prenatal care or any other service specific to women. So the poorest women get no prenatal care, and the only coverage they do get is for two months after giving birth. “We are expecting more women to carry their pregnancies when we have one of the highest maternal mortality rates in the nation. What I want my colleagues to do is put their money where their mouths are to ensure women have coverage before they get pregnant, have coverage when they are pregnant, and one year after.”
And what if they don’t? Howard cited the Turnaway Study, conducted by the University of California, San Francisco, one of the first in-depth studies of women who were “turned away” from getting abortions and therefore had to go through with unwanted pregnancies. These women were more likely to suffer serious complications during their pregnancies and were more likely to suffer poor physical health going forward. They were also more likely to stay with abusive partners. Being denied abortions also increased the women’s levels of debt, bankruptcies, and evictions—locking them into a life of poverty. “I do fear this is not the end; it’s the beginning,” Cecile Richards, the former head of the Planned Parenthood Action Fund, told me. “We collectively have to do a better job of demonstrating the human cost of what’s happening. The vast majority of people never thought this day was coming, and it’s going to take a while to sink in.”
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