Shannon Najmabadi

Bills restricting abortion get initial Texas Senate OK

Shannon Najmabadi, The Texas Tribune

March 29, 2021

"Bills restricting abortion, including one that bans procedure as early as six weeks, get initial Texas Senate OK" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

The Texas Senate gave initial approval Monday to a half-dozen bills that would restrict access to abortion, including a priority measure that could ban abortions before many women know they are pregnant.

The measures are among the earliest bills to be debated by the full Senate — whose presiding officer, Lt. Gov. Dan Patrick, has given two abortion proposals top billing this session. Each piece of legislation must be voted on again in the upper chamber and then go through a similar process in the House before becoming law.

Senate Bill 8 would ban abortions after a fetal heartbeat has been detected, which can be as early as six weeks, according to a legislative analysis. The bill has an exception for medical emergencies but not for rape or incest.

The bill would also let anyone in Texas sue an abortion provider if they believe they violated state laws, regardless of whether they had a connection to someone who had an abortion or to the provider. A person who knowingly “aids or abets" others getting abortions prohibited under state law could also be hit with lawsuits, according to a bill draft.

“We're setting loose an army of people to go sue somebody under a bill that will likely be held unconstitutional," state Sen. Nathan Johnson, D-Dallas, said. “They could be sued over and over and over again having to pay $10,000" which is the minimum proposed damages in the bill.

Similar “heartbeat bills" have been passed in other states but have been blocked by the courts.

State Sen. Bryan Hughes, R-Mineola, the lead author of SB 8, said unique legal language in the bill makes him believe it will be upheld. It's intended to “protect our most vulnerable Texans when the heartbeat is present," he said.

Senate Bill 9, another Patrick priority, would bar nearly all abortions if the U.S. Supreme Court overturned the Roe v. Wade decision or otherwise altered abortion laws. It would create a possible fine of $100,000 for doctors who perform abortions after the law goes into effect. Sen. Carol Alvarado, D-Houston, said the fine for sexual assault in Texas has a $10,000 maximum.

“Why would we punish a doctor who performs an abortion on a victim of rape or incest more than the actual rapist?" she asked.

“I would say that the problem here is not the amount of the fine on the doctor but on a rapist," state Sen. Angela Paxton, SB 9's author, responded.

Other legislation given initial approval Monday would bar later-term abortions in the case of severe fetal abnormalities — closing what the bill's authors have likened to a “loophole" and forcing people to carry ill-fated or unviable pregnancies to term, according to experts and advocates. Women in that situation would be provided with information about perinatal palliative care, or support services, which they may not have been aware of, the bill's author said.

Another bill, Senate Bill 394, would bar pill-induced abortions after seven weeks. Guidelines from the Food and Drug Administration approve the use of abortion pills up to 10 weeks. Nearly 40% of abortions performed on Texas residents in 2019 were medication-induced, according to state statistics.

Most abortions in Texas are banned after 20 weeks. Women seeking an abortion must get a sonogram at least 24 hours before the procedure, and their doctor must describe the sonogram and make audible any heartbeat.

Dozens of abortion-related measures have been filed this legislative session, including one that would open up abortion providers to criminal charges that carry the death penalty. Anti-abortion activists have urged lawmakers to challenge the Roe v. Wade decision, citing the new conservative makeup of the U.S. Supreme Court. Nearly every Republican in the Senate has signed on as an author of SB 8, one of Patrick's priorities, as has Brownsville Democrat Sen. Eddie Lucio Jr., who said Monday he believes life begins at conception.

A seventh abortion-related bill debated by the Senate on Monday would require a contractor to offer counseling and other resources to a person seeking an abortion. That person would receive a pin to verify she received the offer, and the pin would then be destroyed, said Paxton, the bill's author. Earlier bill drafts said the woman would get an identifying number that would be stored in a state database.

Sen. Sarah Eckhardt, D-Austin, asked what services the women would be referred to — pointing to how poor most parents must be to qualify for Medicaid in Texas. A parent with one child would need to make less than $200 a month to qualify, the strictest criteria of any state, according to the Kaiser Family Foundation.

“So we're going to spend $7 million annually for somebody who is less qualified than their doctor to give them advice on something that they probably aren't eligible for?" she asked Paxton.

Paxton said the bill could connect women to support services like housing, resume development, child care and adoption services, and said it could help women who would prefer to carry their pregnancy to term if the circumstances were different.

“If she wants to call" and ask for her code, she can get it and just hang up, Paxton said.

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Another Texas GOP lawmaker is attempting to make abortion punishable by the death penalty

By Shannon Najmabadi, The Texas Tribune

March 9, 2021

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A Texas lawmaker has filed a bill that would abolish and criminalize abortions, leaving women and physicians who perform the procedure to face criminal charges that could carry the death penalty.

The legislation, filed Tuesday by state Rep. Bryan Slaton, does not include exceptions for rape or incest. It does exempt ectopic pregnancies that seriously threaten the life of the woman “when a reasonable alternative to save the lives of both the mother and the unborn child is unavailable."

“It is time for Texas to protect the natural right to life for the tiniest and most innocent Texans, and this bill does just that," Slaton said. “It's time Republicans make it clear that we actually think abortion is murder. … Unborn children are dying at a faster rate in Texas than COVID patients, but Texas isn't taking the abortion crisis seriously."

Similar measures have in the past been filed by state Rep. Tony Tinderholt, R-Arlington, who received death threats and was placed under the protection of the Texas Department of Public Safety after he introduced the bill in 2017. The legislation did not receive a hearing.

In 2019, a related bill from Tinderholt drew nearly eight hours of public testimony. State Rep. Jeff Leach, R-Plano, faced “security concerns" that year after he said the bill would not move out of the committee he chaired for a vote of the full House. The bill died in the committee.

Under the bill filed Tuesday, women who receive an abortion and physicians who perform the procedure could be charged with assault or homicide, which is punishable by death in Texas, confirmed Shannon Edmonds, a staff attorney with the Texas District and County Attorneys Association. The association does not have a position on the bill.

The bill could require people to give evidence or testify about offenses involving the death of or “bodily injury to an unborn child," and would offer immunity to those who do.

It also instructs the state attorney general to monitor and to “direct a state agency to enforce those laws, regardless of any contrary federal statute, regulation, treaty, order or court decision."

The bill bans abortions starting at fertilization; most abortions in Texas are currently prohibited after 20 weeks. The bill's language cites one justice's opinion in a recent Supreme Court case, June Medical Services L.L.C. v. Russo, that says the Constitution "does not constrain the states' ability to regulate or even prohibit abortion."

Slaton, a freshman Republican from Royse City, previously tried to stop the House from naming bridges or streets without first voting to abolish abortion. The amendment failed, but was supported by more than 40 lawmakers, about half of the Republicans in the House.

Asked about the bill's language and effect, Slaton said, without further explanation, that he does not think his bill would "put a single person in jail. All my bill does, is say that an unborn child is the same as a born child and should be treated the same by the laws."

Lt. Gov. Dan Patrick has identified two abortion bills that will be priority items during the legislative session that started in January. One would ban nearly all abortions if the Supreme Court overturned the Roe v. Wade decision or otherwise altered abortion laws. The other has not been filed, but is expected to be a “heartbeat bill" that could bar abortions before many women know they are pregnant.

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For some Texans who lost loved ones to COVID, lifting the mask mandate is a 'slap in the face'

What confuses Delia Ramos about Gov. Greg Abbott's recent decision to cast off coronavirus restrictions in Texas isn't his order to let more people into restaurants. The Brownsville school counselor knows people are hurting economically.

But with more than 43,000 dead in Texas — including her husband — is wearing a mask in public too much to ask? At the least, it could take pressure off the medical systems and help prevent more people from dying, she said.

"It's not about taking away anybody's job or making anybody else suffer financially because everybody has their families to take care of," said Ramos, who lost her husband Ricardo to the coronavirus last year.

"People can go pick up groceries, people can go into a restaurant and people can shop around the mall in masks," she said.

Abbott's Tuesday declaration that it was time to "open Texas" has been decried by local officials and health experts, who say it's too soon to become lax with coronavirus restrictions, as just 7% of the state's residents have been fully inoculated against the virus. President Joe Biden likened the decision to "Neanderthal thinking," and an official with the U.S. Centers for Disease Control and Prevention said it's not the time to loosen precautions.

But the announcement hit harder with Ramos, and others who have lost spouses, parents or friends to the virus — in some cases, making them wonder if the deaths of their loved ones meant nothing.

It feels like people that think it's "inconvenient to wear a mask" override all the "people that have been lost" to the virus, as well as doctors and nurses working long hours and teachers scared to go to work for fear of being exposed, Ramos, 39, said.

She'll continue to wear her mask "with honor."

"I don't want other children to grow up without a father, the way that mine unfortunately are going to have to grow up without one," she said.

After teasing an announcement for days, Abbott said Tuesday that masks would soon no longer be required statewide, and that businesses could return to full occupancy starting next week.

From a Mexican restaurant in Lubbock, Abbott said the state is in a "completely different position" now that vaccines are available and there is broad awareness of prevention measures. He also said there is more protective equipment, testing and treatments, and he cautioned Texans to exercise personal vigilance.

The governor's spokesperson, Renae Eze, said he "joins all Texans in mourning every single life lost to this virus, and we pray for the families who are suffering from the loss of a loved one."

"As the governor has stressed repeatedly, removing state mandates does not end the need for personal responsibility nor the importance of caring for family members, friends and neighbors," she said in a statement.

Abbott's order — which makes Texas the most populous state without a mask mandate — comes as virus variants that are more contagious have emerged in Texas, with Houston becoming the first city nationwide to record cases of every major variant, according to a recent study.

The announcement also comes before a spring break period that could send people traveling across the state, timing that makes Dr. Jamil Madi, in Harlingen, think "we're shooting ourselves in the foot."

"The virus is still here, it's not like it's faded away," said Madi, chief of critical care medicine and director of the intensive care unit at Valley Baptist Medical Center in Harlingen. "The virus is just dormant and the way it wakes up is by human contact."

Texas has seen infections and deaths from the virus drop, and hospitalizations are at their lowest point since October. But the state ranks nearly last among states for the share of its population that have gotten a shot, and the number of patients hospitalized with the virus is higher now than it was when Abbott first began a phased economic reopening of Texas last spring.

In the hard-hit Rio Grande Valley where Madi works, infections went into a lull in September and early October but have picked back up, he said. There was a wave after the winter holidays when people traveled and gathered with family members to celebrate, and he's seen patients who had the disease and recovered return sicker than ever.

"Every time we decide to let loose, whether it's gatherings or [changes to] mask mandates, we see a definite spike after an event happens," creating a kind of "roller coaster," Madi said.

"We go back to the same cycle again and again and we're tired, we're all tired, to say the least," he said.

More than 43,000 people have died with the virus in Texas during the pandemic, which has devastated swaths of the state's economy and taken a toll on people's mental health.

Ramos, among those who lost a loved one, found out about Abbott's orders on Facebook. The next post in her feed asked for prayers for two school district employees fighting the coronavirus in the ICU, she said.

She was struck by the "harsh difference in those two realities."

In nearby McAllen, Ana Flores watched Abbott's announcement in disbelief on Tuesday. For the 39-year-old, who works at an adult day care, it immediately brought back memories of when Abbott loosened COVID-19 rules in May — weeks before infections surged and devastated the predominantly Hispanic or Latino communities along the U.S.-Mexico border.

She got severely sick with the virus. Her husband of ten years, a truck driver, who was cautious and "knew a little bit about everything," was hospitalized and died at age 45.

"For [those of] us who lost a loved one, for us who survived — because I got pretty sick as well … it's like a slap in the face," Flores said of Abbott's announcement, noting his "happy" tone and the "clapping" people around him.

For Abbott to say "it's time for us to get on with our lives, everything to go back to normal," she said, "normal is not going to happen for us ever again."

She said it felt like Abbott "doesn't care" that counties in the border are "still struggling" even if other parts of Texas are doing better.

Mandy Vair, whose father, a hospice chaplain, died with the virus last summer, saw the order and wondered: Did his death not matter? She and other family members were limiting social activities and wearing masks, but were infected in November and Vair was sick for weeks. Her family still hasn't had a memorial ceremony for her late father because they don't feel it's safe to gather.

She said Abbott's decision made her think, "He got his immunization and maybe all of those that are important to him already got the immunization. So [now] the rest have to kind of fend for themselves until their turn comes up," she said. "We have to be responsible for ourselves — well, haven't we been trying to be responsible for ourselves the whole time?"

Local officials have slammed Abbott's order, saying it's premature and sends the wrong signal to residents who take cues from their leaders about how seriously to take the virus. Some have also expressed worry that front-line workers and communities of color could be left vulnerable to infection if others aren't required to wear masks around them. A CDC website says wearing a mask protects the wearer and those around them, and works "best when everyone wears one."

More than half of the COVID-19 deaths have been Black or Hispanic people, and advocates fear these communities have fallen behind in the vaccination efforts in Texas. In Texas, fatality rates in border areas like El Paso and Hidalgo, where a majority of residents are Hispanic or Latino, were among the highest per capita of big counties statewide.

State Sen. Borris Miles, a Houston Democrat, said on Twitter that Black people have a disproportionate fatality rate and that the governor lifting a statewide mask mandate amounted to "signing the death warrants of communities of color."

"Today he made it clear Black lives don't matter," Miles tweeted.

Rebecca Fischer, an epidemiologist at Texas A&M University, said she was surprised such a "drastic measure was taken at such a critical time" and thinks the state could face "potentially a devastating trajectory" if prevention measures are relaxed.

Now is "not the time to be dropping our masks or throwing them in the trash can. This is the time really to be stepping up our prevention behaviors," said Fischer, an assistant professor with A&M's school of public health.

Public health experts have recently said two masks may be better than wearing just one, given differences in how they are constructed and fit, she said.

Eze, with the governor's office, said Abbott will continue to work with other officials to "speed the vaccination process to protect Texans from COVID, with the immediate priority of vaccinating Texans who are most likely to be hospitalized or lose their life from COVID." She cited a state initiative that deployed the National Guard to help vaccinate homebound seniors.

She said Texas "has the tools and knowledge we need to deal with COVID and keep Texans safe," and that the number of vaccines is "rapidly increasing" each day and more Texans are protected.

Abbott has also said local judges can reimpose some restrictions if COVID-19 hospitalizations exceed 15% of capacity in their region for seven straight days.

But Hidalgo County Judge Richard Cortez said he doesn't want to wait until that point to be able to take action.

He said he was "very concerned" about Abbott's decision, and did not receive advance notice of the order.

Between the vaccinations and people who have contracted the virus, Cortez estimated about a quarter of his residents have some immunity to COVID-19.

"But we still have a long way to go," he said. "[Abbott] said from the very beginning that he was going to let science dictate his actions. Well, science tells us to have physical distance and separation, facial coverings," and to take other precaution.

Percent of Texans fully vaccinated:

Health experts estimate 75% to 90% of Texans need to achieve immunity to COVID-19 to reach herd immunity. As of March 3, about 7.5% of Texas' 29 million people have been fully vaccinated. One obstacle is vaccines are not approved for children under 16, who make up about 23% of the population.

What was "so special, what was so scientific" about having Texas' Independence Day be the day that the announcement was made, he asked.

In El Paso, city and county leaders urged their residents to practice the unity that helped them weather several recent tragedies, including a mass shooting in 2019 and a flood of coronavirus infections last fall. Just a few months ago, officials had to ask jail inmates to work for $2 an hour moving bodies, because regular staff couldn't keep up with the demand.

County Judge Ricardo Samaniego said COVID-19 patients were still taking up some 14% that of the region's hospital beds, indicating the area isn't ready to reopen.

"The timing is really what the problem is," he said. "If, in fact, it were true that we were ready to open, it'd be exciting for everybody, we'd be celebrating."

Texas Attorney General Ken Paxton sued Samaniego last fall after the county judge imposed tighter restrictions than the state on business openings. Paxton won, and in his victory lap on Twitter referred to Samaniego as a tyrant and El Paso County, the state's sixth largest, as a "rogue subdivision."

Samaniego said he doesn't expect that kind of interference again because he knows he's limited in what he can do moving forward.

"We're not going to do anything that is outside of the legal components and legal elements [of the order]," he said. "We're going to look more at trends and we're going to talk to all the leaders and consult with the county-city task force. We're going to check the science before we check the politics."

El Paso Mayor Oscar Leeser said his plea for El Pasoans to continue wearing masks came not just from his duties as an elected official. Leeser's mother and brother died from the disease less than two months apart in 2020.

"My mother was sick and we didn't realize that my mother had COVID-19. But I said 'Guys, make sure you wear your mask,'" Leeser recalled telling his brother and sisters late last year. His sisters listened but his brother didn't, he said.

"My brother did not wear a mask while he was there and unfortunately got COVID-19 and also lost his life," Leeser said. "I am a living testimonial that it works."

Meanwhile, the executive director of Operation H.O.P.E., an El Paso charity that helps families pay for funerals, said he's not talking to a dozen or more families every day the way he was in late 2020, when the border city was the country's COVID-19 epicenter.

But Angel Gomez, the executive director, said he's not optimistic that won't happen again.

"I just hung up with the seventh [family] today," he said. "We should have just waited a little bit longer, but with this governor it's like we take one step forward and two steps back."

"Give it until the end of April and we're going to start seeing a spike again," he added.

Flores, in McAllen, remembers when Abbott loosened the coronavirus restrictions in May. She and her husband were scared. He traveled all over Texas as a truck driver, and would call her saying he'd gone into a store and saw few people were wearing masks. She remembers seeing a newspaper headline describing South Texas as a "Valley of Death" — an apropos description to her at the time.

"Look what happened the first time around, that's when we got hit really bad especially here in the Valley. … All these people that were sick and dying, my husband included. I just feel like it's too soon again."

She's going to keep wearing a mask. If her husband were alive — if he "wouldn't have been taken from" her — she thinks he would, too.

Texas' attempt to ban common abortion procedure blocked by appeals court

"Texas' attempt to ban common abortion procedure blocked by appeals court" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Women in Texas can continue to access themost common procedure used to end a pregnancy in the second trimester, after a federal appeals court Tuesday struck down a state law that would have curtailed its use.

The law would have required doctors to stop the fetus's heart before performing a dilation and evacuation abortion — in which doctors use surgical instruments to remove pieces of fetal tissue — except in the case of a medical emergency. Those who violated the law could have faced prison time.

The measure — which never went into effect — has been tied up in litigation since the Texas Legislature passed it in 2017. It was struck down by a district judge in Austin, who said it substantially burdened a woman's right to an abortion, and was appealed before the politically conservative 5th U.S. Circuit Court of Appeals in New Orleans. The proceedings were stalled pending a Supreme Court case decided this summer.

Judge James Dennis, writing for the majority, said the law “forces abortion providers to act contrary to their medical judgment and the best interest of their patient" by first stopping the fetus's heart with procedures that are “unfeasible," “dangerous" and provide “no benefit to the woman."

The requirement could increase the duration of an otherwise one-day dilation and evacuation procedure, potentially burdening low-income women who “must wait until the second trimester to seek an abortion because of the time needed to obtain funds to pay for the procedure," he wrote.

The law's “burdens substantially outweigh its benefits," he wrote. The decision was 2-1, with two Democrat-appointed judges in the majority and Republican-appointed Judge Don Willett dissenting.

The state's lawyers have likened the method of a dilation and evacuation to “dismemberment," and Attorney General Ken Paxton has called it “barbaric."

Abortion providers who brought the lawsuit say dilation and evacuation is the safest way to end a second-trimester pregnancy and that an effective ban on it would subject women to medically unnecessary and untested procedures. The requirement to stop a fetus's heart could lead providers to “essentially experiment" on patients, one doctor said in a trial about the law in 2017.

Molly Duane, an attorney with the nonprofit Center for Reproductive Rights, said the alternative to a dilation and evacuation procedure is medical induction — “essentially giving birth."

“Labor induction, just practically speaking, isn't available in Texas, let alone logistically speaking. Asking a patient to exchange a simple outpatient, 10-minute procedure for hours if not days inpatient in the hospital — again in the middle of a pandemic — is unrealistic," she said in an Aug. 12 interview.

The American College of Obstetricians and Gynecologists has said the procedure is “evidence-based and medically preferred" because it results in the fewest complications for women in the second trimester.

Tuesday's decision comes after the 8th U.S. Circuit Court of Appeals lifted a block on four Arkansas abortion restrictions in August, citing Chief Justice John Roberts' opinion in the recent Supreme Court case June Medical Services v. Russo. While Roberts' crucial vote in that case awarded a victory to advocates of abortion access then, he issued a narrow opinion that said lawmakers have wide discretion “in areas where there is medical and scientific uncertainty" and that weighing the “costs and benefits of an abortion regulation" was not necessarily a job for the courts.

Lawyers representing Texas argued this presents a different standard than was applied by the district court that struck down the dilation and evacuation restriction in 2017. In that ruling, the burdens of the law were weighed in relation to its benefits — a balancing test rejected by the June Medical decision, the state's lawyers wrote.

“The Chief Justice demonstrated that is it not enough to show merely that a law imposes some 'burden' on abortion access, or that a regulation makes abortion more difficult or expensive. … Rather, 'the only question for a court is whether a law has the 'effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non viable fetus,'" the state's lawyers wrote, citing Roberts' opinion.

The court disagreed, with Dennis writing that the judges agreed the “balancing test still governs."

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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