News Abortion

Texas ALEC Chair Files ‘Preborn Pain Act,’ as Promised by Rick Perry

Andrea Grimes

This morning, ALEC-affiliated Texas State Rep. Jodie Laubenberg (R-Parker) filed the state legislature's first attempt to ban abortions after 20 weeks—the so-called Preborn Pain Act.

See our other pieces on ALEC and anti-choice bills in Texas here. 

This morning, Texas State Rep. Jodie Laubenberg (R-Parker) filed the state legislature’s first attempt to ban abortions after 20 weeks—the so-called Preborn Pain Act—a move championed last winter by Governor Rick Perry. The bill alleges that “substantial medical evidence recognizes that an unborn child is capable of experiencing pain by not later than 20 weeks after fertilization.”

In fact, there is no such medical evidence, and the American Medical Association has concluded that “evidence regarding the capacity for fetal pain is limited but indicates that fetal perception of pain is unlikely before the third trimester.”

The bill provides an exception for the life of the pregnant person, though only if the person is physically in danger; an abortion may not be performed if there is a “claim or diagnosis that the woman will engage in conduct that may result in her death or in substantial and irreversible physical impairment of a major bodily function.”

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It also changes language in the Texas health code to require physicians to report the “probable post-fertilization age of the unborn child,” rather than the “the period of gestation,” as part of the state’s newly enacted Big Brother-style abortion reporting requirements.

As Rewire has previously reported, 20-week abortion bans predominantly serve to make abortion inaccessible to people who are already in dire straits. According to Lilith Fund President Amelia Long, whose organization helps low-income women find funding for safe, legal abortions:

It’s not the case that women know they want or need an abortion and are “just putting it off and just being lazy about it,” as Perry and his anti-choice supporters seem to believe. “That is never the case with anyone we talk to.”

Instead, says Long, the Lilith Fund hears from women who are in abusive relationships, or from women who initially had a wanted pregnancy but “then something happens that’s a disaster for them,” making the prospect of pregnancy and parenthood untenable. Long characterized Perry’s position as “not acting with compassion.”

And yet, conservative, anti-science legislators soldier on in their attempts to make safe, legal abortion as inaccessible as possible in Texas. This shouldn’t come as a surprise, considering that the sponsor of the so-called Preborn Pain Bill, Rep. Laubenberg, is affiliated with one of the country’s shadiest conservative lobby groups.

Rep. Laubenberg is the Texas state chair of the American Legislative Exchange Council (ALEC), a hyper-conservative, ostensibly non-profit lobby group that provides state legislators with model legislation developed by and for large corporate interests. Goals of ALEC-developed legislation range from dismantling Medicaid to protecting big businesses that pollute the environment to strengthening stand-your-ground gun laws, making the group a particular friend to the National Rifle Association.

Roundups Politics

Campaign Week in Review: Trump Weighs in on Supreme Court Decision, After Pressure From Anti-Choice Leaders

Ally Boguhn

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health v. Hellerstedt came after several days of silence from Trump on the matter—much to the lamentation of anti-choice advocates.

Donald Trump commented on the U.S. Supreme Court’s abortion decision this week—but only after days of pressure from anti-choice advocates—and Hillary Clinton wrote an op-ed explaining how one state’s then-pending decision on whether to fund Planned Parenthood illustrates the high stakes of the election for reproductive rights and health.

Following Anti-Choice Pressure, Trump Weighs in on Supreme Court’s Abortion Decision

Trump finally broke his silence Thursday about the Supreme Court’s decision earlier this week, which struck down two provisions of Texas’ HB 2 in Whole Woman’s Health v. Hellerstedt.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that,” Trump claimed of the Court’s decision, evidently not realizing that the Monday ruling was 5 to 3 and one vote would not have made a numerical difference, during an appearance on conservative radio program The Mike Gallagher Show. “It would have been the opposite.” 

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“So just to confirm, under a President Donald Trump-appointed Supreme Court, you wouldn’t see a majority ruling like the one we had with the Texas abortion law this week?” asked host Mike Gallagher.

“No…you wouldn’t see that,” replied Trump, who also noted that the case demonstrated the important role the next president will play in steering the direction of the Court through judicial nominations.

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health came after several days of silence from Trump on the matter—prompting much lamentation from anti-choice advocates. Despite having promised to nominate anti-choice Supreme Court justices and pass anti-abortion restrictions if elected during a meeting with more than 1,000 faith and anti-choice leaders in New York City last week, Trump made waves among those who oppose abortion when he did not immediately comment on the Court’s Monday decision.

“I think [Trump’s silence] gives all pro-life leaders pause,” said the president of the anti-choice conservative organization The Family Leader, Bob Vander Plaats, prior to Trump’s comments Thursday, according to the Daily Beast. Vander Plaats, who attended last week’s meeting with Trump, went on suggest that Trump’s hesitation to weigh in on the matter “gives all people that are looking for life as their issue, who are looking to support a presidential candidate—it gives them an unnecessary pause. There shouldn’t have to be a pause here.”

“This is the biggest abortion decision that has come down in years and Hillary Clinton was quick to comment—was all over Twitter—and yet we heard crickets from Donald Trump,” Penny Young Nance, president of Concerned Women for America, said in a Tuesday statement to the Daily Beast.

Kristan Hawkins, president of Students for Life of America, expressed similar dismay on Wednesday that Trump hadn’t addressed the Court’s ruling. “So where was Mr. Trump, the candidate the pro-life movement is depending upon, when this blow hit?” wrote Hawkins, in an opinion piece for the Washington Post. “He was on Twitter, making fun of Elizabeth Warren and lamenting how CNN has gone negative on him. That’s it. Nothing else.”

“Right now in the pro-life movement people are wondering if Mr. Trump’s staff is uninformed or frankly, if he just doesn’t care about the topic of life,” added Hawkins. “Was that meeting last week just a farce, just another one of his shows?”

Anti-choice leaders, however, were not the only ones to criticize Trump’s response to the ruling. After Trump broke his silence, reproductive rights leaders were quick to condemn the Republican’s comments.

“Donald Trump has been clear from the beginning—he wants to overturn Roe v. Wade, and said he believes a woman should be ‘punished’ if she has an abortion,” said Dawn Laguens, executive vice president of Planned Parenthood Action Fund, which has already endorsed Clinton for the presidency, in a statement on Trump’s comments. 

“Trump’s remarks today should send a shiver down the spine of anyone who believes women should have access to safe, legal abortion. Electing Trump means he will fight to take away the very rights the Supreme Court just ruled this week are constitutional and necessary health care,” continued Laguens.

In contrast to Trump’s delayed reaction, presumptive Democratic nominee Clinton tweeted within minutes of the landmark abortion rights decision, “This fight isn’t over: The next president has to protect women’s health. Women won’t be ‘punished’ for exercising their basic rights.”

Clinton Pens Op-Ed Defending Planned Parenthood in New Hampshire

Clinton penned an op-ed for the Concord Monitor Wednesday explaining that New Hampshire’s pending vote on Planned Parenthood funding highlighted “what’s at stake this election.”

“For half a century, Planned Parenthood has been there for people in New Hampshire, no matter what. Every year, it provides care to almost 13,000 people who need access to services like counseling, contraception, and family planning,” wrote Clinton. “Many of these patients cannot afford to go anywhere else. Others choose the organization because it’s the provider they know and trust.”

The former secretary of state went on to contend that New Hampshire’s Executive Council’s discussion of denying funds to the organization was more than “just playing politics—they’re playing with their constituents’ health and well-being.” The council voted later that day to restore Planned Parenthood’s contract.

Praising the Supreme Court’s Monday decision in Whole Woman’s Health, Clinton cautioned in the piece that although it was a “critical victory,” there is still “work to do as long as obstacles” remained to reproductive health-care access.

Vowing to “make sure that a woman’s right to make her own health decisions remains as permanent as all of the other values we hold dear” if elected, Clinton promised to work to protect Planned Parenthood, safeguard legal abortion, and support comprehensive and inclusive sexual education programs.

Reiterating her opposition to the Hyde Amendment, which bans most federal funding for abortion care, Clinton wrote that she would “fight laws on the books” like it that “make it harder for low-income women to get the care they deserve.”

Clinton’s campaign noted the candidate’s support for repealing Hyde while answering a 2008 questionnaire provided by Rewire. During the 2016 election season, the federal ban on abortion funding became a more visible issue, and Clinton noted in a January forum that the ban “is just hard to justify” given that restrictions such as Hyde inhibit many low-income and rural women from accessing care.

What Else We’re Reading

Politico Magazine’s Bill Scher highlighted some of the potential problems Clinton could face should she choose former Virginia governor Tim Kaine as her vice presidential pickincluding his beliefs about abortion.

Foster Friess, a GOP mega-donor who once notoriously said that contraception is “inexpensive … you know, back in my days, they used Bayer aspirin for contraception. The gals put it between their knees, and it wasn’t that costly,” is throwing his support behind Trump, comparing the presumptive Republican nominee to biblical figures.

Clinton dropped by the Toast on the publication’s last day, urging readers to follow the site’s example and “look forward and consider how you might make your voice heard in whatever arenas matter most to you.”

Irin Carmon joined the New Republic’s “Primary Concerns” podcast this week to discuss the implications of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt on the election.

According to analysis from the Wall Street Journal, the popularity of the Libertarian Party in this year’s election could affect the presidential race, and the most likely outcome is “upsetting a close race—most likely Florida, where the margin of victory is traditionally narrow.”

The Center for Responsive Politics’ Alec Goodwin gave an autopsy of Jeb Bush’s massive Right to Rise super PAC.

Katie McGinty (D), who is running against incumbent Sen. Pat Toomey (R) in Pennsylvania, wrote an op-ed this week for the Philly Voice calling to “fight efforts in Pa. to restrict women’s access to health care.”

The Iowa Supreme Court ruled against an attempt to restore voting rights to more than 20,000 residents affected by the state’s law disenfranchising those who previously served time for felonies, ThinkProgress reports.

An organization in Louisiana filed a lawsuit against the state on behalf of the almost 70,000 people there who have previously served time for felonies and are now on probation or parole, alleging that they are being “wrongfully excluded from registering to vote and voting.”

Analysis Law and Policy

Supreme Court Ruling on Texas Law Reverberates Around the Country

Teddy Wilson

"To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall," said Jessica Mason Pieklo, vice president for law and the courts at Rewire. "The good news is that the Supreme Court's decision in Whole Woman's Health provides advocates with a solid foundation to begin those next fights."

The U.S. Supreme Court struck down Monday two provisions in Texas’ anti-abortion omnibus law known as HB 2, and with that ruling the dominos began to fall. Similar anti-abortion laws in Wisconsin and Mississippi were blocked Tuesday by the Supreme Court, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.

However, significant obstacles remain to ensure access to reproductive health care throughout the country. A number of states have in place slightly different variations of the requirements struck down by the Court, which means it remains to be seen how lower courts may apply Monday’s ruling to restrictions that aren’t exactly like those included in Whole Woman’s Health v. Hellerstedt.

Monday’s decision is a significant victory for patients and providers, but it doesn’t guarantee that targeted regulation of abortion providers (TRAP laws) across the country will start to fall immediately, explained Jessica Mason Pieklo, vice president for law and the courts at Rewire.

“To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall,” Pieklo said. “The good news is that the Supreme Court’s decision in Whole Woman’s Health provides advocates with a solid foundation to begin those next fights.”

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Dozens of states in recent years have passed TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to clinics and physicians in other medical fields.

Many anti-abortion measures introduced around the country resemble copycat legislation drafted by Americans United for Life (AUL), an anti-choice organization that distributes proposals to state lawmakers as part of a strategy to flood state legislatures with anti-choice bills.

As Rewire previously reported, key players in the development of HB 2 were deeply connected to AUL and other conservative lobby groups.

The Supreme Court ruled in Whole Woman’s Health v. Hellerstedt that two TRAP provisions under HB 2 placed “a substantial obstacle in the path of women seeking an abortion,” and constituted “an undue burden on abortion access.”

Specifically, the Court struck down the requirement that physicians who provide abortion care must have admitting privileges at a hospital within 30 miles of the facility where the physician will provide abortion services. The Court also struck down the requirement that facilities providing abortions meet ambulatory surgical center (ASC) requirements, which involve prohibitively expensive medically unnecessary building renovations.

There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.

Laws requiring abortion providers have admitting privileges remain in effect in Arizona, Arkansas, Florida, Indiana, Kansas, Missouri, South Carolina, Tennessee, and Utah.

These laws typically require physicians have admitting privileges at a hospital near the facility where they provide abortion care. Some of these laws require that the hospitals provide OB-GYN services, and some require the physician to be board certified in OB-GYN medicine.

Other laws require that the hospital be no more than 30 miles from the facility where the abortion is performed, or have varied in defining the geographic boundary.

The law that was struck down in Mississippi required the admitting privileges be obtained at a “local hospital.” And Utah’s current law requires the hospital be within a “travel time of 15 minutes or less,” while Florida’s recently passed law requires the hospital be within a “reasonable proximity.”

There are 24 states that have passed laws requiring facilities in which surgical abortion services are performed to meet ambulatory surgical center standards that go beyond what is needed to ensure patient safety, and another 17 states require clinics that may only provide medication abortion to meet these same standards, according to the Guttmacher Institute.  

As Nick Bagley, an assistant professor at the University of Michigan School of Law, told Vox, similar laws that have been passed in other states may face legal challenges in the wake of Whole Woman’s Health, but the details of those challenges may vary. “The Supreme Court only applies to Texas,” Bagley said. “Other states will have slightly different laws with slightly different facts to argue over.” 

Florida and Indiana TRAP Laws Set to Take Effect 

This year Florida passed its own Texas-style anti-choice omnibus law, which takes effect Friday. However, there are some differences between the two laws, including differences in the types of regulations of physicians who provide abortion care.

Clinics that offer abortion services in Florida will be required to have a written patient transfer agreement, which includes the transfer of the patient’s medical records, with a hospital within “reasonable proximity” to the facility. Physicians also will be required to have admitting privileges at a hospital within “reasonable proximity” to their clinic.

The law also mandates annual inspections of all licensed abortion clinics, requires any medical facility in which abortions are performed to submit a monthly report, and prohibits state or local governments from entering into contracts with organizations that provide abortion services.

State Sen. Kelli Stargel (R-Lakeland), who voted for the bill, expressed concern after the senate vote that the bill’s language could become an issue in the courts. “Those clauses gave me concern that it would make it as though our intent was to close down all abortion clinics in the state,” Stargel told the Tampa Bay Times. “That was not the intent of this bill.”

After the Supreme Court’s ruling on Monday, Stargel reiterated that despite the bill’s similarities to the Texas law, it was not lawmakers intent to restrict access to abortion. “In Florida, we passed [the law] to safeguard women’s health, not to close abortion clinics,” Stargel said in a statement, reported the Florida Sun Sentinel.

Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told the Miami Herald that the language of the bill may be different, but that Florida lawmakers had the same intent as Texas lawmakers: to shutter abortion clinics.

“It’s definitely different language,” said Goodhue. “But the intent is the same.”

Planned Parenthood has filed a lawsuit challenging the law, however, the organization is not challenging the admitting privileges requirement. 

Goodhue told the Florida Sun Sentinel that the organization will determine if there are grounds for other lawsuits in the future. “Right now, we’re seeking emergency relief on the other three provisions, but we’ll make sure that access to care is protected,” Goodhue said.

Gov Rick Scott (R), who signed the bill into law in March, said during a press conference Monday that his administration is reviewing the Supreme Court’s decision, reported the Miami Herald

Lawmakers in Indiana have in recent years passed multiple laws to restrict access to abortion, including laws that have provisions mandating that physicians have admitting privileges and other reporting requirements

Mike Fichter, president and CEO of Indiana Right to Life, said in a statement that the Supreme Court showed “utter disregard for women’s health and safety,” and defended a similar law passed state lawmakers this year.

“We will be reviewing the Supreme Court’s decision thoroughly to see how this legal precedent could affect Indiana’s laws on admitting privileges and abortion facility building standards,” Fichter said. 

An omnibus abortion bill passed in 2011 contained multiple abortion restrictions, including a provision that a physician performing an abortion must have admitting privileges at a hospital located in the county where abortions are provided or a contiguous county.

The law also allowed for a physician to meet the requirement by entering into an agreement with a physician who has admitting privileges at a hospital in the county or contiguous county.

Another similar law was passed by Indiana lawmakers this year, which made numerous changes to state laws, including requiring forced counseling and mandatory ultrasounds for abortion patients, creating regulations on physicians who provide abortion care, and banning fetal tissue donation that has led to the development of vaccines and other public health benefits

The law created a requirement that a written agreement between a physician performing an abortion and a physician who has written admitting privileges at a hospital in the county or contiguous county be renewed annually.

The law also requires the state department of health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.

Gov. Mike Pence (R) signed the bill into law in March, and it will go into effect on Friday.

Ali Slocum, spokesperson for Planned Parenthood of Indiana and Kentucky, told the Indianapolis Star that the organization does not have any immediate plans to challenge the law in court. “We are focused on what is currently in the pipeline. It is possible that the standard that the court set [Monday] could be used to challenge restrictions in other states,” Slocum said.

Efforts in State Legislatures to Repeal Laws

In some states lawmakers and advocacy groups may push to repeal similar laws following the Whole Woman’s Health decision.

Arizona lawmakers have passed several anti-choice laws in recent years and, like Texas and Florida lawmakers, justified those regulations as necessary to ensure the health and safety of women in the state.

Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona, said in a statement that the Supreme Court made a “clear statement” that laws that restrict access to abortion care are unconstitutional.

“Arizona is a large state, with population spread across many rural areas. Laws that delay care, require travel over great distances and overnight stays certainly place real-life burdens on women seeking our care,” Liggett said.

Arizona Senate Minority Leader Katie Hobbs told the Arizona Republic that she will lead the effort in the legislature to repeal similar laws. “No woman or doctor should be punished for receiving or providing essential medical care,” Hobbs said. “These restrictions have never truly been about women’s health.”

However, repealing anti-choice laws in the GOP-dominated Arizona state legislature may prove difficult.

Republicans hold an 18-12 majority in the state senate and a 36-24 majority in the state house, and they have introduced dozens of anti-choice bills in the past several years. There have been seven laws to restrict access to abortion passed by Arizona lawmakers, including a law similar to Texas’ HB 2 which requires abortion providers to have admitting privileges.

Those efforts have been spearhead by the Center for Arizona Policy, a conservative think tank that promotes anti-choice, anti-LGBTQ, and so-called religious freedom legislation.

Cathi Herrod, president of the Center for Arizona Policy, said in a statement that the Supreme Court’s decision eliminated “common-sense safety precautions” for women seeking abortion care. “To give the abortion industry a blanket exemption from laws applicable to every other medical facility is unconscionable,” Herrod said.

Josh Kredit, general counsel for the Center for Arizona Policy, told the Arizona Republic that the Supreme Court’s decision suggest that abortion providers should be treated differently that other health-care providers.

“They are arguing they should be exempt from garden-variety health and safety regulations,” Kredit said. “It was clear that Texas, when it passed these, was focusing on protecting women, just like many of our laws that we pass in Arizona.”

Dr. Thomas M. Gellhaus, president of the American College of Obstetricians and Gynecologists, said in a statement that the Court’s decision made it clear these laws do not improve the health and safety of patients seeking abortion. Said Gellhaus: “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”

“Of course, this is not the end of the battle when it comes to abortion access,” Gellhaus added. “In dozens of states, women are living under laws that impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more. None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship. We will continue to oppose these laws and to promote safe access to legal abortion for our patients.”