For four years, maternal health experts, reproductive rights advocates, and patients who suffered under Texas’ abortion ban have pleaded for lawmakers to clarify medical emergency exceptions in the state’s abortion law, seen as the bare minimum they could do to mitigate the disaster inflicted by the harsh restrictions.
Vague exceptions coupled with severe penalties that include $100,000 in fines and up to 99 years in prison have led confused and fearful doctors to deny critical care to high-risk patients. Last fall, when ProPublica reported the tragic—and “preventable”—deaths of three pregnant Texans who faced delayed care for miscarriages, Republicans continued their unabashed defense of the state’s ban.
Pressure from constituents and public outcry may have finally tilted the scales for state Senator Bryan Hughes, a Mineola Republican, who authored Senate Bill 31 this legislative session, a measure that seeks to provide clarity about when doctors can perform life-saving care. Under the bipartisan bill, an “imminent” risk of death or a “substantial impairment of a major bodily function”—the previous standard—does not need to be present before a doctor can intervene. The bill also clarifies that a doctor or lawyer can discuss a medically necessary abortion with a patient without facing “aiding and abetting” charges.
Bryan Hughes on the Senate floor on May 19 (Jordan Vonderhaar for the Texas Observer)
SB 31 was a glacially slow response to a public health crisis that Republicans themselves created, so it was expected that reproductive rights advocates would remain wary. (After all, it was Hughes himself who authored the state’s bounty hunter-style abortion ban in 2021, prior to the fall of Roe.) But what surprised many was the full-on opposition to the bill from pro-abortion activists—largely around the concern that the bill was a “Trojan horse” to revive a century-old abortion ban that could criminalize abortion supporters and even patients. Lawmakers later added language meant to neutralize the issue, but groups say they still are not entirely assuaged.
For reproductive rights advocates, SB 31—which has been sent to the governor for signing—does not offer meaningful change. They’ve deemed the legislation an “exception deception” bill. The clarifying language remains vague and open to interpretation, leaving the legal gray area intact, which will continue to “cause confusion, delay care, and endanger lives,” said leaders from six Texas abortion support groups, including The Lilith Fund, Fund Texas Choice, and The Afiya Center.
And, glaringly, the bill fails to add carve-outs for rape, incest, or fatal fetal diagnoses—exceptions approved in a number of other red states with bans.
“[SB 31] will not stop hospitals from prioritizing legal risks over patient health nor fully shield doctors from prosecution,” said the abortion fund leaders. “This bill only exists to provide anti-abortion politicians cover for their decision to ban abortion, while still keeping care inaccessible.”
In a statement, Blair Wallace, policy and advocacy strategist for reproductive rights at the ACLU of Texas, didn’t mince words: “Texans know bullshit when we see it. This bill is a political stunt designed to distract us from the damage the state’s abortion ban continues to cause.”
Moreover, no abortion providers were engaged in the drafting of the bill, as Dr. Ghazaleh Moayedi—a Dallas-area OB-GYN and complex family planning specialist—pointed out. “You can’t address the problem of abortion access without actually talking to the doctors who provide abortion care—it’s a fallacy to think you can,” Moayedi, a vocal opponent of SB 31, told the Observer. “You need our expertise and our lived experiences to inform the legislation.”
Pro-reproductive rights march in May 2022 (Gus Bova)
When the Observer spoke with Hughes earlier this session to ask if, indeed, any abortion providers were sought to help craft the bill language, he replied, “No abortionists were consulted or invited to participate in this process. This bill is not about them.”
Pushback to SB 31 emphasizes the innate problem with attempts at “fixing” draconian abortion bans. “Any ‘exceptions’ language is always going to result in lingering confusion about when doctors can provide life-saving care,” Lucie Arvallo, executive director of Jane’s Due Process, told the Observer. “The only real way to solve the public health crisis started by politicians is to fully repeal the ban.””
Amy Bresnen, an attorney and health care lobbyist who has championed widening exceptions and is among those who helped draft SB 31, acknowledged some of the measure’s shortcomings but called it the “first step” in a long process. Ultimately, she views it as a victory for Texans. “At the end of the day, we are a red state, and we pushed as far as we could go,” Bresnen said. “Obviously, we didn’t get everything we wanted. We just didn’t have the votes, but I do believe this is a great bill that will save women’s lives.”
During the session, Hughes pushed with one hand his bill to “save mothers” while using the other to advance Senate Bill 2880—which would have been the nation’s most aggressive assault on the flow abortion pills, among the only options left for many pregnant Texans. The bill would have empowered citizens to sue anyone who “manufactures, distributes, mails, prescribes, or provides” abortion pills to Texans for at least $100,000 in damages.
Meant to serve as a blueprint for other red states to model, the legislation seemed poised to pass. However, after gliding through the Senate, the bill stalled in the House State Affairs Committee for three weeks (where it received pressure from more than 40 right-wing lawmakers), only making it out at the last minute and never reaching the House floor for a vote. Anti-abortion advocates attribute SB 2880’s death to “apathy” from what they consider less ardently “pro-life” Republicans, specifically State Affairs Committee Chairman Ken King. “The House didn’t prioritize this important bill and Ken King is responsible for sabotaging it, along with Speaker [Dustin] Burrows, who shares the blame because the buck stops with [the] Speaker,” Texas Right to Life president John Seago told the Observer.
The bill’s failure marks a significant—and rare—loss for Texas anti-abortion activists, who have been increasingly successful at the Capitol, and underscores the tension between the Lege’s extremist faction and more moderate Republicans. It also mirrors the reality that Texas voters largely oppose allowing private lawsuits against those who provide abortion pills.
Deemed “unprecedented” and “shocking” by legal experts, SB 2880 would have also been immune from constitutional challenges in state court, per the bill text.
“This bill was calling to fundamentally restructure our judicial system. It was pushing some radical legal theories which caused a stampede away from it,” Senator Sarah Eckhardt, an Austin Democrat, told the Observer. “I think this bill rightfully scared the crap out of a lot of people.”
Texas Right to Life says it is not giving up on other avenues to get the bill passed, including lobbying Abbott for an additional 30-day special session. “We are the most stubborn and committed pro-life group in Texas, and we will push for a special session to ensure passage of this bill,” said Seago.
While SB 2880 died, abortion rights in Texas did not exit this legislative session unscathed. Republicans managed to pass a measure that restricts local governments from using public funds to help abortion patients with practical support like out-of-state travel costs, lodging, food, and childcare. That financial assistance has become increasingly vital as Texans are forced to trek hundreds—and even thousands—of miles for care.
Sarah Eckhardt on the floor in May (Jordan Vonderhaar for the Texas Observer)
State Senator Donna Campbell’s Senate Bill 33, a priority item for Lieutenant Governor Dan Patrick, takes direct aim at voter-approved investments from the cities of San Antonio and Austin, the latter of which allocated $400,000 to assist abortion patients in their current budget.
“This law will strip away Austin’s ability to support Texans navigating complex, confusing, and difficult medical decisions,” Council member Vanessa Fuentes told the Observer. “It means that many in our community will face even greater barriers to accessing essential health care.”
Local government support for practical abortion needs served as one of the surviving vehicles for communities to help patients amid a state-level ban. “We at least still have the ability to make grassroots change in our local communities when it comes to reproductive rights, so for elected officials to undermine that, and make it harder to help the most marginalized get health care—it’s disgraceful,” Kamyon Conner, executive director of the Texas Equal Access Fund, said.
A dozen abortion support groups worked to remove some of the most harmful language from the bill, and they say they can at least still partner with city governments to fund access to Plan B and birth control, as well as text support lines and hotlines.
All told, reproductive rights leaders view the demise of SB 2880, the session’s most aggressive anti-abortion bill, as a temporary reprieve.
“We don’t necessarily feel victorious, we just feel relief for now. We can catch our breath a little; that’s a much different feeling than celebrating,” said Conner. “The bill is a stark reminder that even after making abortion illegal, Republicans are still continuing to find new ways to block any remaining access. It’s pretty scary to see how far they will go. I mean, what more do they want?”
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