Why Texas abortion opponents aren’t leading the charge to overturn Roe v. Wade

Emboldened by a newly conservative U.S. Supreme Court, abortion opponents across the country are pushing some of the most restrictive anti-abortion legislation in recent years — like “heartbeat bills” that would ban the procedure after six weeks of pregnancy. With new legislative restrictions, they hope to incite a legal battle to overturn, or at least gut, the landmark Roe v. Wade ruling that was spurred by a Texas abortion law.

But three of Texas' biggest anti-abortion groups want to avoid legislation that takes direct aim at Roe v. Wade, fearing such an approach could backfire and justices could uphold women's rights to the procedure. Instead, they want to take a more incremental approach with bills that would erode abortion protections more slowly.

“We see the bigger-picture strategy,” said John Seago, legislative director for Texas Right to Life. “There is no shortcut. This is the only way.”

His group, along with Texans for Life and the Texas Alliance for Life, is focusing on legislation other than Texas’ version of a heartbeat bill, which didn't make it out of a House committee this week in time to keep moving through a legislative session that ends in less than three weeks. That sets Texas apart from states like Georgia, where the governor recently signed a heartbeat bill into law, and Alabama, where a near total abortion ban just made it to the Senate floor.

“About a quarter of the states have been looking at six-week abortion bans, and then the other states are watching to see what will happen around those bans in the court,” said Elizabeth Nash, state policy analyst for the reproductive rights think tank The Guttmacher Institute. “You have the states that are out there in front and the other states that are waiting to see what will happen — that may be the boat that Texas is in right now.”

Blake Rocap, legislative counsel for NARAL Pro-Choice Texas, an abortion rights group, calls the Texas anti-abortion strategy a “political calculation.” Because some socially conservative legislators lost their seats in last year’s midterm election, he said, advocates and lawmakers who oppose abortion are instead promoting measures that would still undermine abortion protections “but at the same time [aren’t] so repugnant to suburban women.”

The Texas groups’ hesitance to directly take on Roe v. Wade comes as the Republican-controlled Texas Legislature considers several high profile abortion bills. And it follows a national media blitz over a proposed bill by state Rep. Tony Tinderholt, R-Arlington, which would've imposed criminal penalties on mothers who elected get abortions and physicians who performed the procedure. That coverage belied how unlikely that bill was to pass (a Republican committee chair refused to advance it because mothers could face the death penalty) and the fact that even some anti-abortion groups opposed it out of fear that it wouldn’t withstand a federal court challenge.

Texas Right to Life has instead focused on backing Senate Bill 1033, which the Senate passed earlier this week. That bill would eliminate certain exemptions to a state law that prohibits abortions after 20 weeks of pregnancy, such as when the pregnancy is not viable or the fetus has "severe and irreversible" abnormalities. It would also prohibit abortions on the basis of the sex, race or disability of a fetus, and criminalize doctors who perform what opponents call “discriminatory abortions.”

Seago, the group’s legislative director, believes the high court would take up an abortion case over SB 1033 because it would fit a key criterium: It presents a unique legal question that would have far-reaching implications throughout the nation.

While Roe v. Wade established the constitutional right to abortion, it also found that the state has an “important and legitimate interest in protecting the potentiality of human life.” And Seago believes that a good case — one the Supreme Court is likely to consider — would pose a question about the state’s interest in protecting fetuses with abnormalities.

“A lot of these bills that just prohibit abortion, they don’t present a state interest. It’s just kind of a head-butt,” he said. “It’s not really built to ask the right questions to the Supreme Court. It’s just saying Roe is wrong.”

Texans for Life and the Texas Alliance for Life have had less luck with their push for “trigger bills” that would impose civil or criminal penalties on physicians who perform abortions in the event Roe v. Wade is overturned. The House version of such a bill, House Bill 2350, wasn't voted out of committee before a key deadline this week to move legislation through the lower chamber. And the Senate State Affairs Committee has yet to debate its chamber's version of the legislation, Senate Bill 2160.

Meanwhile, Joe Pojman, executive director of the Texas Alliance for Life, fears that any legal battle could uphold abortion rights while funneling potentially millions of dollars in attorneys' fees to abortion providers. Those worries stem from a legal battle over a 2013 Texas state law that required doctors who performed abortions to have admitting privileges at nearby hospitals and forced clinics to comply with the standards of ambulatory surgical centers.

The U.S. Supreme Court struck down key provisions of that law in late 2016. The decision has been hailed by abortion rights advocates as their biggest Supreme Court victory since Planned Parenthood v. Casey, a case that reaffirmed the constitutional right of abortion established in Roe v. Wade. The attorneys' fees from that case still haven’t been resolved in court, but the state could pay roughly $4.5 million.

“That’s a big setback because it’d be a windfall for the abortion industry,” Pojman said. “More than a dozen cases are in the pipeline to overturn Roe v. Wade. We don’t need any more.”

Republican Lt. Gov. Dan Patrick echoed that sentiment during a Thursday morning radio talk show appearance when asked why a heartbeat bill wouldn't move in Texas, a state he called "clearly the most pro-life state in the country."

"To be candid with you, there was a lot of discussion in the pro-life arena ... and it was not something that was the highest priority because it eventually will be decided in the Supreme Court, and they felt some other state cases were moving," he said.

But Mark Davis, the conservative host, said it's "our turn" to pass a heartbeat bill in Texas. "We will not be a fully pro-life state until we have a heartbeat bill," he said. "And you’re not a real pro-lifer unless you’re in favor of the heartbeat bill."

While major Texas anti-abortion groups aren’t pushing for a six-week abortion ban, abortion rights groups are still worried that the so-called “incrementalist” strategy — and the bills advancing through the Legislature — could undermine current protections for women seeking the procedure.

“They do want to overturn Roe v. Wade. They don’t want to push forward legislation that does that right now; maybe it just nibbles around the edges,” said Rocap, NARAL's legislative counsel. “It’s just even more insidious. ... They’re just chipping away at the most vulnerable people that they can stigmatize and marginalize to prevent them from having access to health care.”

And legal battles over other states’ laws could still impact abortion rights in Texas. If the Supreme Court decides to curb protections on the procedure, state lawmakers could impose heightened abortion restrictions, and the courts could uphold them. That leaves abortion rights groups agonizing about the future.

“Right now, it feels like Roe is in jeopardy. It feels like Roe could be undermined,” said Nash, with the Guttmacher Institute. “I don’t think abortion rights supporters have been this concerned since the late ’80s.”

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