May 26 UPDATE: The Senate accepted House amendments to SB 8 on a vote of 22-9 Friday afternoon. The bill now heads to Governor Greg Abbott’s desk for his signature; pending approval, it will take effect Sept. 1.
The Texas House passed a slew of anti-abortion regulations this weekend, likely setting up new legal challenges less than a year after the U.S. Supreme Court struck down the state’s sweeping anti-abortion bill.
During five hours of debate Friday afternoon, Senate Bill 8 became the 85th Legislature’s main vehicle for restricting abortion. Conservative lawmakers tacked on more extreme measures that had passed as standalone bills in the Senate but stalled in House committees.
The bill, which passed 93-45 on third reading Saturday and now awaits final approval by the Senate, would ban fetal tissue donation and require the burial or cremation of fetal remains following an abortion. The legislation also bans “partial-birth abortion,” a nonmedical term for a practice already prohibited under federal law. The measure is a response to unfounded claims that abortion clinics harvest fetal organs for a profit, resulting from discredited videos claiming Planned Parenthood sells fetal tissue.
An amendment by Representative Stephanie Klick, R-Fort Worth, bans what anti-abortion advocates call “dismemberment abortion.” That’s another nonmedical term referring to the dilation and evacuation (D&E) procedure — one of the most common types of abortion during the second trimester.
Critics and some supporters agree the measures are not intended to advance women’s health — a critical standard set by the Supreme Court — raising the likelihood for future court challenges.
“This legislature has a history of passing bills that have been struck by the courts because they’re unconstitutional,” said Representative Chris Turner, D-Grand Prairie during debate. He argued that the D&E ban would eliminate legal abortion options for many women.
Last June, the U.S. Supreme Court struck down two main provisions of House Bill 2, Texas’ major anti-abortion law passed in 2013. The court ruled that the state cannot add restrictions that would create a burden on access without evidence that the regulations are necessary for women’s health. More than half of the abortion clinics in Texas were forced to close by the time the law was deemed unconstitutional.
“Why don’t we just stop passing unconstitutional laws for a change?” Turner said.
Supporters of the bill sidestepped questions of whether the proposed measures would improve women’s health, instead focusing on emotional pleas and graphic descriptions of abortion procedures.
“Abortion is a sin, it’s wrong, it’s evil,” said Representative Briscoe Cain, R-Deer Park.
In a Senate hearing earlier this year, SB 8 author Senator Charles Schwertner, an orthopedic surgeon from Georgetown, repeatedly cited the debunked Planned Parenthood videos, not women’s health, as the reason for the bill. Representative Cindy Burkett, R-Sunnyvale, the bill’s House sponsor, said Friday she is concerned with “fetal tissue becoming a commodity.”
The fetal remains burial requirement has already been ruled unconstitutional in Texas.
The measure was originally proposed last year by the state health department, just days after the Whole Woman’s Health ruling. The regulations were blocked by U.S. District Court Judge Sam Sparks, who said they placed new undue burdens on abortion access. The state is appealing and the case will likely be at the Fifth Circuit Court of Appeals in the next few months.
Vice President Mike Pence signed a similar bill into law as governor of Indiana, but a federal judge blocked the measure last year.
Opponents of SB 8 say the requirements will further stigmatize abortion and add the kind of burdensome regulations that the Supreme Court ruled unconstitutional.
“Clinics would have to get new contractors, and the rules create new burdens they may not be able to comply with,” said Blake Rocap, legislative counsel for NARAL Pro-Choice Texas. “The other side knows that. They know if they make it hard enough to comply, clinics won’t have a license.”
The new fetal remains bill, if given final passage, will be added to the current lawsuit, said Amy Hagstrom Miller, CEO of Whole Woman’s Health and lead plaintiff in last year’s Supreme Court case, Whole Woman’s Health v. Hellerstedt. She is again at the center of the case in the fetal burial lawsuit.
“This is not based on any science or fact, [anti-abortion advocates] know that,” Hagstrom Miller said. “They’re trying to say what happened in the Supreme Court doesn’t apply to us in Texas.”
The bill’s supporters say the measure will survive legal challenges. It would not create an undue burden on clinics because added costs would be minimal, they say. The bill creates a registry of funeral homes and cemeteries willing to provide free or low-cost burials.
“This is really about ensuring babies are treated in a humane manner — that their bodies are not desecrated, their organs are not harvested and sold,” said Joe Pojman, executive director of Texas Alliance for Life, the anti-abortion group aligned with Republican House leadership.
Abortion providers could also “absorb the cost, as a good faith measure to women,” Pojman suggested, emphasizing that the cost would be “very small.”
In fact, a cremation costs between $1,500 to $4,000, according to a letter submitted to the state by the Texas Medical Association and Texas Hospital Association last year. A full funeral costs about $7,000 to $10,000.
Democrats scrambled to moderate SB 8. An amendment from Representative Rafael Anchia, D-Dallas, would have added a religious exemption to the burial requirement. Representative Jessica Farrar, D-Houston, tried to add an exemption to the D&E abortion ban in cases where doctors found it was the safest option for the mother, and another that would exempt cases in which the mother’s life was in danger. An amendment from Representative Barbara Gervin-Hawkins, D-San Antonio, would have exempted cases of rape and incest.
All these amendments failed.
“Politicians have no place in the medical exam room,” Donna Howard, D-Austin, said tearfully. “If you want to stop abortions, then help me to stop unwanted pregnancies” by supporting contraception. Abortions happened before Roe v. Wade made them legal, she said, and will continue with these new restrictions, but less safely.
Texas Alliance for Life had urged lawmakers not to support a D&E abortion ban, saying it was sure to result in a court challenge. Meanwhile, Texas Right to Life, aligned with the House Freedom Caucus, cheered the passage of its priority bill.
Conservative lawmakers drew the line at a controversial amendment by Representative Matt Schaefer, R-Tyler, that would outlaw abortions after 20 weeks, including in cases of a fetal abnormality. Burkett called the amendment “a step too far.”
“Why should a woman be forced to give birth to a baby that will die in birth?” Anchia asked. “Because it’s a person created in the image of God,” Schaefer said.
Editor’s note: This story has been updated to reflect the House passing SB 8 on third and final reading Saturday, following tentative passage Friday evening.