Freedom Is Now More Fragile in Texas 

I guess you could say that Texas giveth and Texas taketh away. For those too young to recall, the abortion-rights case Roe v. Wade was won in 1973 by two attorneys from the state, Sarah Weddington and Linda Coffee. But from virtually the moment abortion became legal in all fifty states, some lawmakers here, and their supporters who opposed abortion rights, started chipping away at it. Half a century later, our Legislature had passed some of the most restrictive laws in the nation—and that was before Roe fell. Now that the U.S. Supreme Court has taken Roe away, with a 6–3 majority in Dobbs v. Jackson Women’s Health Organization, some Texas leaders seem eager to exploit the opportunities that the ruling offers for further rollbacks of reproductive and sexual freedoms. Attorney General Ken Paxton’s office released employees from work early on the day of the decision to celebrate, declaring June 24 a new, annual agency holiday “to commemorate the sanctity of life.”

What could come next? Just about everything is on the table. Criminal penalties? They’ll be much stiffer, not just for those who aid Texans in getting abortions, but possibly for abortion-seekers themselves. Abortion pills? They were banned from sale for those more than seven weeks pregnant during last year’s legislative session. Enforcement mechanisms, however, are unclear. Most such medications arrive by mail from other states and countries, and U.S. Attorney General Merrick Garland has said that states “may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” suggesting that court battles lie ahead. Limits on contraception? You betcha. The same privacy rights that the Supreme Court overturned in the Dobbs case underlie what we have for decades considered the right to contraception and private sex acts between consenting adults—and, more recently, same-sex marriage. Indeed, just as the 2022 Texas GOP platform embraces “the humanity of the preborn child,” it also calls homosexuality “an abnormal lifestyle choice.” Paxton told an interviewer he was “willing and able” to defend a Texas law—which was overturned by the Supreme Court’s Lawrence v. Texas decision—that bans gay sex.

Texas statutes that predate Roe but were never overturned by the Legislature are now in effect, prohibiting all abortions except “for the purpose of saving the life of the mother.” A miscarriage could now be a death sentence for those whose doctors are averse to litigation or, worse—under the “trigger law” that takes effect thirty days after the Court’s ruling—to arrest on felony charges and a possible prison sentence, along with fines starting at $100,000. “It is kind of astounding that we are at a point where Roe will be overturned, but that won’t be enough,” said Democratic state representative Donna Howard, chair of the Texas Women’s Health Caucus. “The concern is that there will be those who will not only want to criminalize those who are seeking abortion but will use this as an opportunity to roll back access to contraceptives and other advancements that were made that the underlying privacy protection of Roe also supports.” While the law does not prohibit someone from ending their own pregnancy, a South Texas woman, Lizelle Herrera, was arrested and jailed earlier this year for ending hers, and the charges were dropped only after the case became a national controversy.

None of this comes as a surprise to reproductive health advocates, who have been bracing for this moment since the Supreme Court agreed to hear Dobbs last May and then refused to block Texas’s Senate Bill 8, which banned abortions after six weeks. Now their job is both straightforward and nearly impossible: they are the ones charged with making some kind of order out of chaos. According to the Centers for Disease Control and Prevention, more than 625,000 abortions were reported in the U.S. in 2019. The Guttmacher Institute reported that approximately 55,440 abortions occurred in Texas in 2017, the last year for which it has figures. 

The question now is how to care for those who still want to end their pregnancies for the whole spectrum of reasons, from health risks to poverty to abusive partners to an already-oversized family to the desire to complete work on a college degree and pursue a better future for themselves. Logistics will be complicated—how does someone seeking an abortion get from Dilley, Texas, to Albuquerque or Los Angeles or Wichita, Kansas, and how long will the wait be, given the overcrowding of clinics because of the overturning of Roe? If the clinics are full, can a Texan afford to pay a private doctor out of pocket? Who babysits the kids of those who have to travel out of state? Could they lose their jobs for missing too much work while waiting? How do those living on minimum wage come up with airfare or a full gas tank at $5 a gallon to get where they need to go?

Even before SB 8 passed, various advocacy groups such as Fund Texas Choice, the Lilith Fund, and the Texas Equal Access Fund were raising money to help Texans pay for out-of-state abortions at clinics in other states, many of which are already overwhelmed. (New Mexico has been slammed with Texas patients since the bill passed last year.) But these groups have paused operations to figure out a new game plan that will keep them in compliance with the law. “I think post-Roe there will be a greater emphasis on working strategically with other states,” Howard said. “It’s going to be extremely critical that we figure out how people who want abortions in states where it’s illegal can get abortions in states where it’s legal, without impacting that state’s capacity [to serve its own residents]. There are going to have to be some kinds of strategic plans.” And, possibly, lots more clinics.

In the meantime, some of Texas’s Republican leaders are working on ways to criminalize those who help women travel out of state for the procedure. “My first reaction was, ‘isn’t this America?’ ” said Howard. “ How can they do that? ”  But technology can now be applied in ways that were unimaginable when abortion was illegal before 1973. The kinds of surveillance used to spot terrorists in airports could conceivably be used to photograph abortion-seekers crossing state lines. Smartphones and apps used to track menstrual cycles and order abortion pills could also provide evidence.

Such notions might seem paranoid, but abortion rights advocates would suggest it’s not so far from where we are. “Since the seventies, the ability of the state to surveil people [has increased],” said Elizabeth Sepper, a law professor at the University of Texas at Austin. Another open question: Who might gain access to electronic medical records, credit card records, and travel records of, say, a pregnant woman suspected of lawbreaking (perhaps after a tip to police from an unfriendly neighbor or fellow office worker)? A medical record today might easily be cross-checked with the purchase of a bus or plane ticket. Women of color could be more vulnerable, Sepper pointed out, because their communities are already heavily policed. 

Some legislators haven’t been willing to wait for hypotheticals. Republican state representative Tony Tinderholt, of Arlington, wrote a bill in 2019 making abortion a capital crime. That means Texans who end their pregnancies could face the death penalty, the same as those who kill police officers. In March 2021 representative Bryan Slaton filed a similar bill, which, along with imposing a potential death penalty for those who have abortions, would require anyone who knows about an abortion to testify against defendants in court—and receive immunity from prosecution. Both bills failed. But that was then.

Republican state representative Briscoe Cain, of Deer Park, appears to have been emboldened by his success pushing voter suppression measures in the most recent legislative session. “The law of Texas is clear,” he posted on Twitter. “It is a crime to pay for another person’s abortion, punishable by 2 to 5 years imprisonment. Texas abortion funds and their donors are committing criminal acts by paying for abortions in Texas.” He has promised to submit legislation in the next session to prosecute “lawbreakers” and to “authorize district attorneys from throughout the state to prosecute abortion crimes when the local DA is unwilling to do so.” (As of July 1, five district attorneys in Texas had said they won’t prosecute.)

In a page taken from Lieutenant Governor Dan Patrick’s playbook, Cain has also announced that he will propose a bill to prevent companies such as Amazon and Citigroup, which have said they will pay travel expenses for employees’ out-of-state abortions, from doing business with the state government. Fourteen Texas House Republicans have already signed a letter to the CEO of Lyft promising “swift and decisive” action if the ride-sharing company helps employees get out-of-state abortions. Cain also posted cease and desist letters he sent to abortion funds, with a statement that certainly reads like a threat: “Abortion funds think they can flout the law because a local district attorney refuses to bring charges. We’ll fix this problem next session.”

Another front in the war against reproductive rights has to do with medication. Abortion pills were outlawed here last session for anyone more than seven weeks pregnant. 

As Sepper points out, however, “it can be really hard to distinguish the right to contraception from the right to abortion.” Abortion pills end a pregnancy, which differentiates them legally from Plan B, an over-the-counter medication that prevents fertilization and so far has not been the target of legislation. But Sepper said the fall of Roe could change that. The right to abortion was based on a right to privacy that previous Supreme Court majorities saw as implied by the Fourteenth Amendment. With the Dobbs decision, could other privacy rights disappear too? “Maybe the Constitution doesn’t protect privacy in a body that can reproduce,” she said, suggesting a frightening hypothetical. “Bodily integrity and autonomy—those are the same issues with regard to abortion.” Those familiar with the abortion debate nationally may note that Supreme Court justice Samuel Alito, in the Court’s decision striking down the federal contraception mandate, wrote for the majority that employers could view contraceptives as “abortifacients”—something that causes abortions. 

A host of other unintended consequences are being predicted, not just for those who want abortions—but also for those who don’t. In May of this year, an Austin woman was suffering from an ectopic pregnancy—a fertilized egg had implanted in her fallopian tube instead of her uterus, an excruciating condition that can be fatal if it causes the tube to rupture. The woman’s doctor called in a prescription for a drug called methotrexate to end the pregnancy, but the pharmacist refused to fill it for fear of being sued under SB 8. As the Austin American-Statesman reported, pharmacists are terrified of lawsuits under SB 8 and the criminalization mandated by Senate Bill 4, which was also passed last session. Already, at least one Austin pharmacy chain has stopped providing methotrexate, even for those with ectopic pregnancies, according to the Statesman, although saving someone from that condition is not considered an abortion under Texas law. Because the treatment for abortion and miscarriage is often the same, those who experience the latter—in at least one out of ten pregnancies—can expect additional delays and, most likely, additional grief.

Those desperate for children through in vitro fertilization could also be targeted. Most couples and individuals going through the IVF process fertilize more than one egg, and sometimes many more, to raise the odds of conception. So what happens to the extras now that abortion is illegal? Currently, it is legal to let the unused embryos thaw, which soon makes them unviable. But does that now constitute an abortion? Said Howard: “There’s no desire [of antiabortion lawmakers] to think things through, to work with the medical community to determine what is really happening here and what the implications could be.” Legislative moves, she said, have been and will continue to be “based on ideology and not on science and evidence.”

Given the makeup of the current Legislature, Howard and others are not optimistic about a reclamation of reproductive rights anytime soon. Her focus going forward will be to try to “encourage the Texas Legislature to finally provide the necessary investments in health care for women and babies. We are going to be having all these additional pregnancies,” she said, pointing out that nearly half the births in Texas are to parents poor enough to qualify for Medicaid—181,000 in 2018—and that our leaders have long refused to accept the federal funds that would come with expanding the program. Federally qualified health centers are already inundated with patients seeking general care. So the poorest women often receive no prenatal care—and the only coverage they get is for two months after giving birth. 

“We are expecting more women to carry their pregnancies when we have one of the highest maternal mortality rates in the nation,” Howard told me. “What I want my colleagues to do is put their money where their mouths are to ensure women have coverage before they get pregnant, have coverage when they are pregnant, and one year after.”

And what if they don’t? Howard cited the Turnaway Study, conducted by the University of California San Francisco, one of the first in-depth studies of women who were “turned away” from getting abortions and therefore had to go through with unwanted pregnancies. These women were more likely to suffer serious complications during their pregnancies and more likely to suffer poor physical health afterward. They were also more likely to stay with abusive partners. And being denied abortions increased the women’s levels of debt, bankruptcies, and evictions—sometimes locking them into a life of poverty.

That conclusion does not bode well for Texans whose freedoms have been substantially curtailed, abortion or no. The same is true of Texas generally, which could see greater poverty and inequality with the limitation of those rights. “I do fear this is not the end; it’s the beginning,” Cecile Richards, the former head of the Planned Parenthood Action Fund, told me. “We collectively have to do a better job of demonstrating the human cost of what’s happening. The vast majority of people never thought this day was coming, and it’s going to take a while to sink in.”

This story appeared in the August 2022 issue of Texas Monthly with the headline “Freedom Is Now More Fragile in Texas.” An abbreviated version originally published online on June 24, 2022 and has since been updated. Subscribe today.