New Bill Aims to Make Abortion a Felony in Texas

Republicans are emerging from behind the thin veil of "women's health" with a bill that would criminalize abortion. Experts say it is unconstitutional.


State Representative Tony Tinderholt, R-Arlington.
State Representative Tony Tinderholt, R-Arlington.

A Republican lawmaker filed the “Abolition of Abortion in Texas Act” Wednesday, which would ban and criminalize abortions in Texas at any stage and direct state officials to ignore federal law established by Roe v. Wade.

House Bill 948, authored by state Representative Tony Tinderholt, R-Arlington, is the newest and most straightforward attempt by Texas Republicans to force the U.S. Supreme Court to revisit the landmark 1973 decision that established the right to terminate a pregnancy under the 14th Amendment.

Previously, as with HB 2, GOP lawmakers have hidden behind the thin veil of “women’s health” when making laws that limit access to abortion in the state. But the new proposal is clear in its motive and comes after the Republican Party of Texas declared “abolishing abortion by enacting legislation to stop the murder of unborn children” as a priority for the legislative session.

The bill, which directs state officials to ignore “any conflicting federal” laws, would criminalize abortion except when a mother’s life is at risk due to pregnancy complications. The bill classifies a fetus as a “living human child” from the moment of conception, and it argues that a fetus has the same privileges and rights as “any other human child.”

“This is a latter-day attempt at nullification of federal law or Supreme Court decisions, and it’s not going to work. Period,” said University of Texas law professor Sanford Levinson. “There is simply no doubt whatsoever that it is unconstitutional under current law.”

The proposal would remove the exception for abortion in the state’s penal code for criminal homicide, meaning women and abortion providers could face felony charges for the procedure.

The bill makes no exception for rape or fetal abnormalities.

“Texas has become a cautionary tale about what happens when abortion is legislated out of reach, and reproductive health providers are shut down,” said Amy Hagstrom Miller, founder of Whole Woman’s Health, during a Thursday media availability on the future of abortion rights. Whole Woman’s Health was the plaintiff in last year’s U.S. Supreme Court case Whole Woman’s Health v Hellerstedt, which challenged HB 2.

One of the most restrictive abortion laws in the country, Texas’ HB 2 was partially struck down by the U.S. Supreme Court in June. In a 5-3 vote, the high court ruled that requiring Texas abortion facilities to meet hospital-like standards and doctors performing abortions to have admitting privileges at a nearby hospital placed an undue burden on a woman’s constitutional right to an abortion.

Regardless, the majority of abortion providers in Texas were shuttered as a result of the law before the court issued its ruling. A report by the University of Texas at Austin’s Texas Policy Evaluation Project confirmed that women seeking abortion services in Texas were forced to travel farther at higher out-of-pocket costs.

“The Texas Legislature has a sizable group of mad-dog Republicans who want to play to their base,” Levinson said.