What The Hell America!

Republican state legislators unveiled a new effort on Friday to derail the health care network that has helped people in Texas continue accessing abortion years after the Lone Star State banned the procedure.

The 43-page bill targets tech companies that allow patients to order abortion pills online and nonprofit funds that help them travel out of state for care and gives new power to the state’s attorney general to prosecute abortion providers. Introduced by influential state legislators in the state’s House and Senate and backed by Texas Right to Life, a leading anti-abortion group, this is the most sweeping abortion bill introduced in the state since the fall of Roe v. Wade almost three years ago. 

If passed and signed into law, the measure would introduce civil liabilities for distributors of abortion pills and create a civil liability for “the wrongful death of an unborn child” as a result of taking the medications — and empower the “biological father of the unborn child” to file those civil lawsuits. It would also go after the websites that share information about abortion pills, as well as the financial transaction companies that facilitate people paying to order abortion medications. 

And it would make it a felony to help someone cover the costs of receiving an abortion, including helping pay for them to travel out of state for care.

“This is a multipronged attack on abortion pills and from a lot of different angles,” said Greer Donley, a law professor at the University of Pittsburgh and expert on medication abortion law. 

It will almost certainly be challenged in court if it becomes law. Still, the impact could be tremendous. Despite the proliferation of abortion bans across the country — including in Texas, the second-largest state, and the first to effectively ban abortion early in pregnancy, the result of a six-week abortion ban it enacted months before Roe’s fall — the number of abortions performed in America is higher than ever. That’s thanks in no small part to the growing practice of health care providers mailing abortion pills, a medically safe and effective regimen, to patients in states where the procedure is banned. 

The workaround has been made possible in part by a collection of statutes known as “shield laws.” Such laws have been enacted in a handful of liberal-leaning states and are meant to protect doctors and other health professionals who provide virtual care, including abortion, to patients living under bans. Thousands of patients each month have been able to access abortion medication through shield laws, according to the Society of Family Planning. The largest share of those patients are in Texas.

Abortion opponents have repeatedly attempted to halt the telehealth practice, but without success. 

They have argued in court that the one of the medications used to induce abortions, misoprostol, should be removed from the market altogether, despite decades of evidence supporting its use. Senate Republicans have pressed nominees to President Donald Trump’s Cabinet to commit to reviewing and possibly restricting the use of abortion medication. Some have called for leveraging a 19th century anti-obscenity law called the Comstock Act — dormant for decades but never repealed — to outlaw the mailing of these pills. The notion that the Comstock Act could in fact outlaw mailing abortion pills is controversial and is a legal argument the previous presidential administration rejected.

Earlier this year, Texas Attorney General Kan Paxton stepped in, filing civil charges against Dr. Maggie Carpenter, a New York-based doctor who allegedly mailed abortion pills to a woman in Texas. Carpenter was fined $100,000 by a Texas court, but New York, one of the states to enact a shield law, is expected to try to block enforcement of that ruling. The case will likely play out over months if not years.

Meanwhile, Trump himself has done little on abortion policy in his first two months in office, and abortion opponents have backed away from pressing for him to endorse national restrictions. In that vacuum, the Texas bill could be the most meaningful legislative proposal in any state this year to block telehealth abortion— an area the state’s anti-abortion activists have labeled as a top priority.

“The bill that we are working on is a response to the new tactics we’ve seen to promote illegal activity,” said John Seago, head of Texas Right to Life. “This is not sustainable just as far as health policy goes.”

The bill also establishes a state-based version of the Comstock Act, making it a state crime if anyone “commits or conspires to commit” a violation of that law by mailing materials intended for an abortion. 

The Texas legislature adjourns in the beginning of June, meaning the state government has just about two-and-a-half months to debate the bill. If it passes and is signed into law—as it almost certainly would be, given the governor’s vocal opposition to abortion and the legislature’s heavy Republican majority — it would take effect September 1. 

A law like this could have an effect well beyond Texas, noted Mary Ziegler, an expert in abortion law at the University of California Davis, particularly because of its provisions targeting the internet-based distribution of abortion pills.

“If the bill worked it would be a lot harder to find information about abortion online in Texas and potentially everywhere else,” she said. “There’s no internet in Texas versus elsewhere. The internet is the same everywhere.”