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Your Right to Not Much

How the 78th Lege chipped away at reproductive rights
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Deliberations were winding down when Sen. Gonzalo Barrientos (D-Austin) rose to offer a final amendment to House Bill 15, the ironically titled “Women’s Right to Know Act.” He had little reason to hope that the powerful pro-life contingent in the Lege would hear his last-minute pleas against the wide-ranging anti-abortion bill. Pro-choice groups had already testified late into the night against the bill’s 24-hour “period of reflection” and increased clinic regulation, to no avail. Just the day before, the House had shot down 10 proposed amendments aimed at compromise. Now Barrientos was making a final effort in the Senate to exempt from the waiting period women seeking abortions due to rape, incest, their own health problems or severe fetal abnormalities. After reading the text of his amendment—his slow, measured tones barely concealing his frustration—he yielded to Sen. Robert Deuell (R-Mesquite).

Deuell, a doctor, spoke calmly at first.

“There are many hundreds, if not thousands of women who have been raped and carried that pregnancy, and had the baby and have been very happy that they’ve done that,” he said. “. . . I still feel very strongly that even as tragic as some of those circumstances are, they have been a blessing to many, many people.”

In responding to the assertion that rape could be a blessing, Barrientos’ tone grew sharper.

“Who am I,” he asked, “or who are you, and who is the Texas government to go and tell my daughter, or Sen. Lindsey’s daughter, or Sen. Ogden’s aunt, after they have been raped, and maybe severely beaten, that they shouldn’t have an abortion. Who are we?”

Deuell again insisted that 24 hours would give victims time to realize the blessing bestowed upon them, and Barrientos repeated his position. The two men went around in rhetorical circles before Barrientos finally gave up and returned to his seat. Soon after, HB 15 passed in the Senate, one of three major victories for anti-abortion forces this session.

Pro-life groups characterize the 78th Legislature as a victory for women. Throughout the session they used feminist-sounding language—e.g, ” Women’s Right to Know Act”—to argue that laws that mandate waiting periods, grant fetal personhood, and cut off family planning funds from clinics that provide abortions will make Texas women safer and better informed. What pro-choice groups saw was not compassion and concern, but a desire to punish the women who seek abortions and the doctors who provide them, a desire to restrict access to legal abortions, and to mount a legal challenge against Roe v. Wade.

“They can’t make abortion illegal in Texas, so they’re making it impossible to get one,” said Kae McLaughlin of the Texas Abortion Rights Action League (TARAL). “But there was no effort to create any sort of public policy that would reduce the number of unintended pregnancies, while at the same time they were taking children off the health care rolls with funding cuts.”

Take the “Women’s Right to Know Act,” which Rep. Frank Corte (R-San Antonio) has been pushing for years. The main provision of the bill is “informed consent.” At least 24 hours before having an abortion, a woman must now sign a statement indicating that she has been given access to photos of fetal development and information regarding the risks of abortion and pregnancy, as well as her legal right to collect child support from the baby’s father if she decides to carry the pregnancy to term. (In one of the few small victories for pro-choicers, HB 15 includes an amendment by Rep. Jessica Farrar (D-Houston) requiring that they also be told of the statistical chances of actually collecting child support.)

Pro-choice groups oppose the waiting period for several reasons. In practical terms, it increases the financial burden—hotels, food, time away from work—for women who have to travel to one of the 15 out of 254 counties in Texas where abortions are available. They bristle at the insinuation that women have not already carefully considered their options before going to a clinic, and consider cruel those who would refuse to consider exemptions in cases of rape. They also express concern over the requirement that doctors inform women of the “possibility of increased risk of breast cancer following an induced abortion.”

While some early studies suggested such a connection, they were refuted by other studies. Finally, in February the National Cancer Institute convened a workshop to put the issue to rest. The Institute concluded that early studies suggesting the possibility of increased risk of breast cancer were deeply flawed, and that the most recent and objective research proved that a link between breast cancer and abortion simply does not exist. But not according to HB 15.

Peggy Romberg, executive director of the Women’s Health and Family Planning Association, points out that for many women, unintended pregnancy is so traumatic that they’re unlikely to be influenced by the Legislature’s bad science. “But,” she adds, “it’s heinous that Texas says that doctors have to tell women things that all the major medical associations say aren’t true.”

And doctors have no choice: HB 15 mandates a fine of up to $10,000 if they don’t toe the line. Moreover, doctors can also expect to come under the scrutiny of pro-life groups hoping to catch them in an infraction.

“Each of these provisions is an opportunity to try to shut down a provider, and they’ll be mining it for all it’s worth,” said McLaughlin. “We know Life Dynamics will be out there trying to trip people up.”

Denton-based Life Dynamics Inc., an anti-abortion organization, most recently gained notoriety for having an adult woman call clinics posing as a teenager with an adult boyfriend and asking how to get around Texas’ four-year-old law that minors must notify a parent or get a judicial bypass to receive an abortion. The tape of a phone conversation recorded by Life Dynamics, in which one clinic worker promised to help break the law, was introduced during the debate on the parental consent bill as evidence that clinics were covering for pedophiles. Putting aside the hyperbolic claims of Life Dynamics, Susan Hays, a board member of Jane’s Due Process, an organization that helps minors negotiate the judicial bypass process, says there’s good reason to tell a girl in that situation what she wants to hear.

“If I had a 13-year-old calling with a 24-year-old boyfriend , I would say whatever I had to keep her from hanging up so I could get her into the clinic and away from that guy,” she said.

HB 15 also requires that all abortions after 16 weeks to take place in an ambulatory surgical center or hospital, instead of a clinic. Proponents say this will make women safer. But Dave Kittrell, vice chair of the Texas section for the American College of Obstetricians and Gynecologists says that HB 15, which he characterizes as “stupid,” will have no impact on the safety of abortions.

“This bill is absolutely not medically necessary,” he said. “There are clinics in Texas performing abortions up to 23 weeks, and there has not to my knowledge been a single death.”

He agrees with pro-choice groups that the bill will only reduce access, since having the procedure performed in an ambulatory surgical center quadruples the cost. Moreover, since few of the approximately 250 ambulatory surgical centers in Texas currently perform abortions, access will be problematic even for women who can afford the fees. As Romberg points out, there’s a strong incentive for things to stay that way.

“Pro-life groups have made pretty difficult,” she said. “However sympathetic ambulatory surgical centers may be to the situation these women are in, the last thing they want is picketers harassing the staff and the patients, and the doctors having to wear bullet-proof vests to work.”

A proposed amendment that did not pass would have allowed women to go to a clinic if they could not find a center willing to do the procedure.

Rep. Senfronia Thompson (D-Houston) proposed offering a second “Choose Choice” plate that would send money to the same charities. Rep. Mike Villarreal (D-San Antonio) offered an amendment that would change the words on the plate to “Adopt a Child” and send the money to the state adoption agency. Rep. Dawnna Dukes (D-Austin) tried to fund the state adoption agency but without changing the “Choose Life” wording of the license plates. After that failed, she offered a second amendment, this time sending the money to licensed adoption agencies. Each time someone tried to amend Wohlgemuth’s license plate project, she curtly suggested that the legislator author his or her own amendment; the point of her amendment was simply “to make sure those babies are born to begin with.”

Were it not for Villarreal’s last-minute point of order killing the entire transportation bill on a technicality, it would have easily passed—with Wohlgemuth’s license plate amendment.

Another of Wohlgemuth’s creations, this one successful, provides further evidence that many pro-lifers are indeed only interested in “making sure those babies are born to begin with”—not in preventing unplanned pregnancies or seeing that children are cared for once they are born. Even though current law already prohibits the use of public funds for abortions, her Rider 11 to the appropriations bill cuts off all state funding to organizations that provide abortions—which basically means Planned Parenthood.

About 40 percent of Planned Parenthood’s annual funding comes from the state. The organization operates 85 clinics in Texas; most of them are for pregnancy prevention and health screenings—only seven provide abortion services. But even though only 2.3 percent of all Planned Parenthood visits in Texas are for pregnancy termination, fans of Rider 11 argued against state funding for any Planned Parenthood services.

“Most Texans do not support abortion on demand, so this is a tremendous victory for taxpayers,” said Elizabeth Graham, associate director of Texas Right to Life. “There are other family planning clinics that are not in the abortion business that will now be eligible to receive those funds that the abortion industry was previously eating up,” she added.

However, in a September 2002 Scripps Howard poll commissioned by Planned Parenthood, 76 percent of respondents supported public funding for the organization’s family planning services. Moreover, Margaret Mendez, chief of the Bureau of Women’s Health at the Texas Department of Health, says that if losing state funds when the provisions of the rider take effect means Planned Parenthood affiliates must close or consolidate clinics, it’s by no means certain that other clinics can pick up the slack.

“In Houston, for example, there are a number of contractors, but some may only target adolescents and not be as readily available to other ages,” she said. “Or in a huge city like Houston, there may be transportation issues.”

Several other bills also eroded access to family planning services. In 2001 the Legislature passed the Contraceptive Equity Act requiring health insurers to cover contraception; this time around they passed a bill that relaxed insurance industry requirements— effectively doing away with “contraceptive equity.” Several bills that would have increased access to emergency contraceptives, which prevent pregnancy up to 72 hours after unprotected sex, died in committee. One of the bills, which was proposed by Sen. Jeff Wentworth (R-San Antonio), would have required hospitals to provide emergency contraceptives to rape victims.

Pro-choice advocates hope that the hardliners’ contradictory—some say hypocritical—position on pregnancy prevention services and child welfare may ultimately be their downfall. They imagine a future where suburban women who vote Republican and support legalized abortion will demand that their legislators represent their views. But others worry that the ideology of Speaker Tom Craddick and Lt. Gov. David Dewhurst, as well as that of many big Republican funders, will continue to cow moderate legislators into chipping away at choice.

Among the pro-life bills that did not make it onto the floor this session—but will surely be back in 2005—is a bill that would have forced doctors to inform women about pain experienced by the fetus in abortions that take place after the 20th week of pregnancy and file pathology reports with the CDC for each procedure. Another bill proposes to change Texas’ parental notification law to one requiring parental consent, along with a bill to make public the number of judicial bypasses granted by each judge, which would make it easier for anti-abortion forces to target judges they deem too lenient. Pro-choice advocates admit that defeating such bills will be no easy task. “Pro-choicers tend to run in a pack and preach to the choir,” says Susan Hays of Jane’s Due Process. The first thing they’ll have to do, she says, “is change tactics.”

“This is not about standing up and saying righteous things in public,” she says. “We have to make friends with Republican legislators and reason with them. We have to talk to the swing and branch out.”

But women’s health and choice issues barely registered in the 2002 elections. Few Democrats are willing to champion these causes, and suburban Republican women who want to change their party from within have no easy task. Susybell Gossle, president of the nonpartisan League of Women Voters in Dallas, says that in her circles, many women will not publicly speak about the issue, let alone organize to promote change.

“I know many women who have very strong feelings on this issue, but they feel they just can’t speak publicly about it,” she said. “Here we are in a democracy with freedom of speech, and people are terrified to speak their mind.”

It may be too late by the time they decide to act. A final piece of anti-choice legislation that passed this session, Senate Bill 319, amended the civil and criminal code to define an “individual” from the moment of fertilization. The bill’s author, Rep. Ray Allen (R-Grand Prairie) insists that the bill’s intent is merely to empower a woman or her family to sue for damages on behalf of a lost fetus. However, many see it as a building block for a future case against Roe v. Wade, which was won on the argument that a fetus has no legal standing. Many lawmakers walked out of the vote that passed SB 319 by 100-1, and Peggy Romberg of the Women’s Health and Family Planning Association claims that many more would have joined them if they didn’t fear repercussions.

“I even had Republicans say to me, ‘I’d love to walk this one, but they’d kill me,’” she said. “Everyone knows what this is really about. They’re just afraid to say it publicly.”

Rachel Proctor is a writer in Austin.