AUSTIN, Texas — An Austin-area representative intends to file a bill in this legislative session to clarify for physicians when an abortion can be legally performed in Texas. Rep. Donna Howard, D-Austin, is the author of that bill.
Last session, lawmakers passed a bill often referred to as the "trigger law," even though the proper name is the Human Life Protection Act of 2021. According to the bill, if the U.S. Supreme Court overturned the right to abortion codified in Roe v Wade, the decision would trigger the creation of a felony offense in Texas for any physician who performs an illegal abortion. That overturn occurred, and it has triggered the law.
The one exception — the only legal abortion in Texas — is when the life of the mother is at risk. Otherwise, the doctor would face a second-degree felony for attempting an abortion and a first-degree felony charge for completing it.
Doctors have struggled with how the new statute in the Health & Safety Code should be interpreted. Does the doctor have to wait until the woman is in medical distress? What medical conditions should be considered life threatening when considering a possible abortion?
“I’m drafting legislation trying to do that clarification,” said Rep. Donna Howard, D-Austin, during a panel discussion at a legislative kickoff event hosted by The Texan. “You know, none of us up here are doctors. I’ve been working with doctors with the American College of Obstetricians and Gynecologists, as well as the Texas Medical Association, to look at what language would make them feel like they can use their medical judgment in intervening.”
The Texas Medical Association is mum on Howard’s potential bill. TMA’s Top 10 legislative goals, however, include an effort to “improve women’s reproductive health.”
Sen. Lois Kolkhorst, R-Brenham, chairs the Senate Health & Human Services Committee. During the panel discussion, Kolkhorst said she was profoundly and unapologetically anti-abortion, although she acknowledged the tough circumstances many women faced, especially in cases of sexual assault.
Texas keeps a log of the various circumstances around abortion. In Aug. 2021, doctors performed 5,706 abortions, Kolkhorst said. In Aug. 2022, it was three. That’s 5,703 lives saved, she said.
“That’s really amazing,” Kolkhorst said. “Who knows who they go on to become? I believe life begins at conception. And I want to be respectful. But when I’m asked this question (about exceptions for abortion), I go back and review where we are in the statute, and I do a lot of praying about it.”
Kolkhorst also quoted the specific language of the statute from a notebook she brought. The full language is this: Exceptions can be made if the person performing the abortion is a licensed physician who “in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced or attempted has a life-threatening physical condition aggravated by, caused by or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
“I don’t know,” Kolkhorst said. “That’s pretty clear to me.”
Howard, a former critical care nurse who chairs the Texas Women’s Health Caucus, countered that language that might be clear to lawmakers might not be clear to doctors.
“I’m listening to physicians because they’re the ones that are being put in this position. They’re the ones saying, ‘This is not clear enough for me to know at what point I can intervene,’” Howard said. “’The woman is not yet dying. When she has complications, am I going to have to send her home until she starts to get worse and is exhibiting what the language says in the law — and without doing this, she would die — but she’s not at that point yet?’”
After the panel, Howard said she would be specifically altering language in the trigger law, although four different sections of statute have been used to prosecute doctors. During the panel discussion, moderated by reporter Holly Hansen, Howard said she bristled a bit when people who oppose abortion are the only ones that are called pro-life.
“I would consider ourselves (in the Texas Women’s Health Caucus) to be very much pro-life in terms of supporting the mom’s life and support the lives of our Texas families. I want to make sure we are all talking about supporting these moms and babies,” Howard said. “More than half the births in this state are Medicaid births, and we’re not providing sufficient funding to cover health care of these moms and babies. So I’m hopeful we’re going to increase funding not only for those who are currently having babies in our state but also for what we anticipate as an increased number of moms and babies.”