Texplainer: Is the Omnibus Abortion Bill Unconstitutional?

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Hey, Texplainer: Some people are comparing abortion legislation in the Texas Legislature to an Arizona law that was ruled unconstitutional. Is this bill the same?

The Texas Legislature is considering several new proposed regulations on abortion in Texas, including a ban on abortions after 20 weeks of pregnancy. That proposal is scheduled to be reviewed Thursday by a state House committee as part of House Bill 60, an omnibus abortion bill; it has been compared to a law from Arizona that a federal appeals court struck down in May.

The 20-week ban was originally part of Senate Bill 5 but was removed from that bill during Senate discussions Tuesday.

The Arizona law would ban abortions that take place 20 weeks after a woman’s last menstrual period. The law would not apply in the case of a medical emergency and cites the “higher medical risk” of abortions performed later as well as the possibility that fetuses might feel pain after 20 weeks of gestation. The 9th U.S. Circuit Court of Appeals ruled that the law violated precedent established in the 1973 case Roe v. Wade, which found that women cannot be unduly restricted the choice of an abortion before a fetus is viable. Fetal viability is typically recognized to begin after 24 weeks of gestation.

State Rep. Jodie Laubenberg, R-Parker, who sponsored HB 60, said Texas’ legislation differs from Arizona’s measure because it emphasizes fetal pain, which was “an afterthought” in the Arizona law.

The ban proposed in HB 60 is based on research that shows fetuses start reacting to stimuli at 20 weeks of gestation. But there is no medical consensus about whether this means fetuses actually feel pain at 20 weeks. Authors of a study published by the International Association for the Study of Pain suggested that fetuses might have undergone enough nervous system development to perceive pain. But that was disputed by a scientific review published in the Journal of the American Medical Association, whose authors concluded that fetuses probably couldn’t feel pain until the third trimester. Other research has suggested fetuses are not conscious of pain until the 24th week of gestation. 

But the 20-week ban the House is considering is “essentially the same” as the one the 9th Circuit ruled unconstitutional, said Charles Rhodes, a professor of constitutional law at the South Texas College of Law. Even if the two pieces of legislation are justified differently, they ultimately have the same effect, he said.

Under current Supreme Court precedent, laws intended to or having the effect of unduly limiting access to abortion before fetal viability would be ruled unconstitutional, Rhodes said. 

Current Supreme Court precedent — which shaped the Arizona decision — would find HB 60 unconstitutional, Rhodes said. 

HB 60’s 20-week ban could be determined constitutional if courts recognize that preventing pain to an unborn fetus as a compelling interest, Rhodes said. But so far, he said, the Supreme Court has never recognized potential fetal pain as an important consideration in determining abortion law's constitutionality. 

In Roe v. Wade, the Supreme Court rejected arguments that a fetus should be considered a person before the third trimester of pregnancy, said Lucas Powe, a professor of government at the University of Texas at Austin's School of Law who specializes in constitutional law and Supreme Court history. Rather, he said, the court ruled fetuses should be protected under the Constitution only after they are considered viable — after 24 weeks. 

Under that precedent, he said, arguing for HB 60's constitutionality because of the potential for fetal pain is "a joke." 

The 20-week ban could be found constitutional if defenders argue that 20 weeks gives a woman enough time to choose whether she wants an abortion, Powe said.

Arizona could appeal the 9th Circuit ruling to the Supreme Court. If the court agreed to hear the case, the current precedent — which emphasizes a woman’s access to abortion before fetal viability — could be revised, Rhodes said.

But short of a Supreme Court decision, rulings on the Arizona law don’t directly apply to Texas, because the state falls in the 5th circuit instead of the 9th. 

Though SB 5 — which the Senate passed Tuesday — did not include a 20-week ban, the Senate could discuss such a measure again Friday if members look at Senate Bill 13, currently on its agenda. That bill focuses exclusively on a 20-week ban.

Hegar said during Tuesday’s Senate discussion that he had the 20-week ban removed from SB 5 to ensure the bill would move through both chambers of the Legislature before the ongoing special session ends. 

Heather Busby, executive director of the Texas branch of the National Abortion and Reproductive Rights Action League, said a court challenge would be “on the table” if a 20-week ban became law. 

The 9th Circuit ruling might have little bearing on how Texas legislation would fare, Laubenberg said, adding that the two courts often have “pretty different outcomes on similar issues.”

But the 5th Circuit would still probably strike down a ban like that found in HB 60, Powe said. Though judges in lower courts sometimes "stray off the reservation," the difference between 24 weeks and 20 is substantial enough to make that unlikely.

HB 60 contains a severability clause, meaning that even if part of it — such as the 20-week ban — is ruled unconstitutional, other parts can still be upheld. But Rhodes said even those provisions could be deemed unconstitutional if a court rules the legislation places “undue limitation on a woman’s right to choose abortion before viability.” 

For instance, the bill requires facilities that offer abortions to be available 24 hours a day in case women need help or more information, a provision that Rhodes said seemed to be “singling out the provision of abortion services” in a manner courts would probably find unconstitutional.

Laubenberg said she doesn’t believe the legislation would be seen as unconstitutional for holding providers to different standards.

“Abortion is a totally different surgical procedure than an appendectomy or getting your gallbladder taken,” she said. “You’re dealing with another life, so I do think you need a higher standard.”

Jerry Strickland, a spokesman for Attorney General Greg Abbott, said he could not comment on how Texas would defend the legislation if it were challenged in court, because the office does not provide analysis on bills that have not been signed into law.

Bottom line: Constitutional experts say Texas' abortion legislation is similar enough to Arizona’s overturned law that it would face an uphill battle in court. But if the U.S. Supreme Court hears arguments on Arizona’s law, the "fetal viability" precedent could be revised.