A Texas law about to take effect on Friday carves out exceptions to the state’s abortion ban.
In June, the Republican governor, Greg Abbott, quietly signed HB 3058, allowing doctors to provide abortion care when a patient’s water breaks too early for the fetus to survive, or when a patient is suffering from an ectopic pregnancy.
Crafted by state representative Ann Johnson, HB 3058 appeared to be a rare bipartisan victory in a fiercely conservative state legislature. Johnson, a Democrat who supports abortion access, found an unlikely ally in state senator Bryan Hughes, the Republican who crafted Texas’s infamous “bounty hunter” law, which allows citizens to sue abortion providers as well as anyone who “aids or abets” abortion care.
Johnson and her fellow Texas Democrats welcomed the bill’s passage as a small but important compromise to improve reproductive health in the state.
But abortion rights advocates across the country said HB 3058 offers little help to Texas doctors treating high-risk pregnancies.
“The exceptions in the bill are so narrow, and the penalties for violating the Texas ban are so high, that invariably, a lot of doctors are going to continue not to offer abortion in those situations because they don’t want to get in trouble,” said Mary Ziegler, a law professor at the University of California, Davis.
Hughes’ support of HB 3058 signals a new strategy by Republicans to insulate abortion bans from scrutiny by creating narrow exceptions for medical emergencies.
“There’s a feeling that abortion rights supporters are using those medical cases to delegitimize abortion bans altogether,” Ziegler said.
HB 3058 was first introduced in the aftermath of an explosive lawsuit in which five women denied abortions in Texas, along with two doctors, sued the state after they were refused care despite suffering severe complications with their pregnancies.
The horror stories that emerged from that lawsuit threatened public support of the Texas abortion ban.
“Republicans can now point to these new exceptions and say, ‘Look, that kind of thing doesn’t happen any more,’” said Ziegler.
Johnson said that Texas Republicans genuinely wanted to address the problems raised by the lawsuit – even staunch abortion opponents do not want the state’s ban linked to dangerous delays in medical treatment.
“That’s hard for people to politically justify,” she said.
Part of the problem seemed to arise from a misunderstanding of what constitutes an abortion. If a doctor terminates an ectopic pregnancy, some Republicans did not consider that an abortion.
“There is a political terminology on the word ‘abortion’ that’s different from the medical definition,” she said.
Johnson did not put the word “abortion” in HB 3058 in a bid for Republican votes, and her strategy seemed to succeed. In May, the Texas legislature overwhelmingly voted in favor of the bill.
Dr Katie McHugh, an Indiana OB-GYN and board member of the group Physicians for Reproductive Health, is skeptical of Republican motivations for supporting HB 3058.
“They are just now getting around to the treatment of ectopic pregnancies, more than two years after the first big restrictions went into effect?” McHugh said.
She added that Republicans have long known about the dire medical consequences of sweeping abortion restrictions.
Before the US supreme court struck down Roe v Wade last year, a study of Texas’s existing abortion restrictions found that the “bounty hunter” law left doctors afraid to care for patients whose water broke too early. The pregnant patients needed to be “at death’s door” to receive pregnancy termination under the law.
In a June interview with the National Review, Hughes brushed off the suggestion that Texas’s abortion restrictions are unclear.
“But because some doctors and hospitals were not following the law,” Hughes told the publication, “we wanted to remove any doubt and remove any excuse for not giving the care that the moms need in these cases.”
Texas doctors accused of violating the state’s abortion law face up to $100,000 in fines or even life in prison.
“Doctors felt like their hands were tied behind their back – they could face financial ruin or lose their medical license,” said Johnson, who represents the district that is home to the Texas medical center.
Abortion providers like McHugh warn that HB 3058 will not offer meaningful assurances to Texas OB-GYNs.
“Everyone is afraid of the legal ramifications of crossing these legal boundaries, and writing in exception language is not going to change that,” she said.
McHugh said abortion bans create a chilling effect among doctors who are scared to misinterpret what constitutes a “medical emergency”.
“It’s this idea of having to prove how sick someone is before we can intervene,” she said. “You can’t always prove how life-threatening something is going to be.”
Texas is the second state where abortion opponents approved new exceptions for medical emergencies.
Tennessee Republicans made similar concessions earlier this year, when the state “softened” its total ban in April. Tennessee previously had one of the harshest anti-abortion laws in the country, one that did not make explicit exceptions to save the life of the pregnant person.
But Tennessee Republicans grew worried in February, when the Idaho supreme court temporarily blocked that state’s abortion ban. Tennessee’s attorney general, Jonathan Skrmetti, and Republican house speaker, Cameron Sexton, raised concerns that a similar legal challenge could threaten the future of Tennessee’s ban.
Sexton urged state lawmakers to add exceptions to the Tennessee law banning abortion at conception.
The next month, Tennessee’s governor, Bill Lee, an avowed abortion opponent, signed a bill allowing doctors to offer the procedure when patients have an ectopic or molar pregnancy.
The Tennessee exceptions law is so narrowly tailored that it won the support of staunch abortion opponents.
In an April statement, Tennessee Right to Life praised the final version of the exceptions bill, saying it will “not allow for more unborn children to be aborted in our state”.
Both the Texas and Tennessee laws are extremely limited in scope: ectopic pregnancies represent a small fraction of the medical emergencies that might require a doctor to terminate a pregnancy.
Still, Johnson welcomes any Republican concessions on abortion access.
The doctors in her district said the “bulk of complications” they were struggling to treat involved a patient’s water breaking too early, one of two medical conditions addressed by the new Texas law.
She added: “There’s a lot more we need to do.”
