New law to make small change to Texas’ near-total abortion ban

AUSTIN, Texas — Today, Texas has one of the strictest abortion bans in the country. Under state law, abortions are legal if the patient’s life is at risk, but some doctors say that’s not clearly defined. State law says doctors who perform abortions could face life in prison and fines of up to $100,000. That’s why Rep. Donna Howard, D-Austin, worked with a bipartisan group of lawmakers to clarify the law.

“The purpose of [House Bill] 3058, the new bill, was to ensure that there was an affirmative defense for physicians, that they would not have to be concerned about liability for using their medical judgment,” she said.

The new legislation says doctors have protection against prosecution when they treat PPROM. Short for previable premature rupture of membranes, PPROM is when a woman’s water breaks early, perhaps before the baby is viable. It can be fatal if untreated. Doctors were already allowed to perform an abortion in cases of ectopic pregnancies.

“This will give cover in just those two specific instances,” Rep. Howard said. “So the concerns that physicians have had in other instances, I think, will still be there.” 

Some conservatives think the law was already clear, but say the clarifying legislation was needed to make sure doctors know they can provide care to mothers who need it. 

“Unfortunately, it has been kind of necessary to add reinforcement or clarification on the exceptions for the abortion law,” said Mary Elizabeth Castle, the director of government relations for Texas Values. “We’re very happy that we’re able to provide this clarification to let women know that we care about them as well, and the life of the baby.”

Rep. Howard disagrees with those who say the abortion law was clear enough for doctors to follow.  

“I heard that from some of my Republican colleagues in particular, that it was clear, and my retort to them was, ‘It may be clear to you. You’re not a physician,’” she said. “[Physicians] are saying it is not clear; the hospitals are saying it is not clear. So, I appreciate that some of my colleagues believe in their own minds that it’s clear from their perspective. Those who are actually put in the position of having to make these decisions are saying it is not clear. And what their concern is that they are having to wait for women to start dying before they can intervene. And that is wholly unacceptable and obviously goes against everything that the physicians have been trained to do.”

Although many Democrats say they will keep fighting for reproductive rights, Castle says there’s a “consensus in the pro-life community and amongst pro-life legislators that we are going to keep our pro-life laws as tight and as close to the original as possible.”

“Some people are pro-abortion because they’re confused,” she says. “They don’t know exactly what the law means, so I think there’s a lot of support for the clarification and my hope is that, truly, we’re seeing more people becoming pro-life, regardless of party.”

The exception for PPROM was added at a time when more than a dozen Texans are suing the state over its abortion law. Amanda Zurawski, the lead plaintiff, says she was denied abortion care when she experienced PPROM. Due to an infection, she can no longer have children naturally.

“All pregnant people in Texas and in other states where abortion is banned deserve better,” Zurawski said in July. “These are fundamental human rights we’re talking about, vital to our lives, freedom, health and safety. We need to get them back.” 

The plaintiffs want more clarity around the exceptions and seek the right to an abortion when an unborn child is unlikely to sustain life after birth. 

Ultimately, Rep. Howard would like to see abortion rights restored in Texas. 

“The whole point here is to trust women and families to make their own decisions about these very, very personal things,” Rep. Howard said. “I’m just very disappointed that we feel like we can determine 100% of the time what should or shouldn’t be done. These are individual decisions.” 

Rep. Howard says adding clarifications this year bodes well for future modifications to the law.

“But unfortunately, we’re a part-time legislature,” she said. “It’s not going to happen anytime soon.”

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