What The Hell America!

Senate Bill 31 supporters say it would clarify when doctors should intervene to save a pregnant woman’s life, but critics say its vagueness and a measure to resurrect pre-Roe laws hamper it.

Originally published by The Texas Tribune.

A bipartisan bill to clarify exceptions to the state’s near-total abortion ban garnered widespread support Thursday from healthcare professionals and abortion opponents who said the bill would remove any hesitation doctors might have to save a pregnant woman’s life.

Critics, meanwhile, told lawmakers that Senate Bill 31 doesn’t go far enough to protect women facing pregnancy-related medical emergencies and even quietly resurrects 160-year-old laws that could be used to criminalize those who have undergone an abortion or have helped those who receive an out-of-state abortion.

At a state Senate committee hearing Thursday, SB 31’s author Sen. Bryan Hughes, R-Mineola, said Texas law already creates a medical exception to the state’s abortion ban, allowing doctors to intervene when the life of a pregnant patient is at risk. The proposed legislation, Hughes said, simply reiterates that exception and “removes any question and hesitation” among doctors and hospitals about when they can provide medical care to pregnant patients.

“There’s a mom and there’s a baby, and we want to love and respect and protect them both,” Hughes said during the Senate Committee on State Affairs hearing. “That’s what this is really about.”

At least three women have died and dozens more have shared stories of medical care delayed or denied since Texas banned nearly all abortions after the overturn of Roe v. Wade in 2022. The law as currently written allows a doctor to perform an abortion to save the life of a pregnant patient, but with stiff penalties for violations—life in prison, hundreds of thousands of dollars in fines and the loss of their medical license—doctors have been unsure of when they can safely intervene.

SB 31, called the Life of the Mother Act, would not expand access to abortion or modify the existing near-total bans. Instead, it purports to better explain when doctors can intervene to perform a medically necessary abortion.

The bill would more clearly explain that doctors can remove an ectopic pregnancy or the remains of a fetus after a miscarriage, and aligns the definition of a medical emergency with existing state law. It also clarifies that doctors and lawyers can talk with a patient about a medically necessary abortion without running afoul of the law.

The bill also states that doctors are not required to delay, alter or withhold life-saving medical treatment to try to preserve the life of the fetus, and brings into state law previous guidance from the Texas Supreme Court, which ruled that nothing in the law required the medical emergency to be imminent or irreversible before a doctor could intervene. It also proposes continuing education requirements for lawyers and doctors to better educate them on interpreting and applying these laws.

The bill has garnered bipartisan support from Democratic lawmakers, anti-abortion groups, medical associations, doctors and other healthcare providers.

Medical practitioners and pro-life advocates worked together on the language of the bill, according to Lisa Kaufman, executive director and general counsel for the Texas Civil Justice League, one of the organizations that helped draft the bill. Kaufman said SB 31 would provide doctors with the confidence they need to act in a timely manner.

“There has been a breakdown of the implementation of pro-life law and we want to address that here with Senate Bill 31,” said John Seago, president of Texas Right to Life and one of a handful of individuals invited to testify for the proposed legislation.

The bill would also help recruit and retain the OB-GYN workforce, said Julie Ayala, an East Texas doctor who testified on behalf of herself and the Texas Medical Association.

One in five Texas OB-GYNs have considered leaving Texas and 13 percent are planning to retire early because of the state’s abortion laws, according to a Manatt Health survey published in October 2024.

Toothless bill, critics say

While the bill has the support of some doctors, some Texas mothers and University of Texas at Austin law students voiced opposition to the bill on Thursday, saying it does little to protect women and could dissuade young people from starting families in Texas.

Amanda Zurawski, who sued Texas over its abortion laws after doctors refused to end her nonviable pregnancy, questioned whether SB 31 would have allowed for a different outcome in her situation. Zurawski was 18 weeks pregnant when she experienced preterm prelabor rupture of membranes, a condition that is fatal to the fetus and poses significant risks to the pregnant patient. Zurawski went into sepsis and spent three days in the intensive care unit.

“It is unclear whether Senate Bill 31 would have prevented my trauma and preserved my fertility had it existed in 2022,” Zurawski said, pointing out that the bill does not include specific language about fetal anomalies. “I do believe the bill comes from a place of concern, but I believe the bill is flawed and should be improved.”

Mary Rolfson Taylor, a law student at the University of Texas at Austin, told lawmakers about her experience with an ectopic pregnancy that ultimately led her to undergo an emergency surgery to remove part of her fallopian tube. SB 31 includes a requirement that physicians document the gestational age and location of the fetus to diagnose an ectopic pregnancy before providing an abortion-inducing drug, a provision that Taylor said could force doctors to delay providing life-saving care.

“I, to this day, don’t know my fetus’ gestational age and did not know the location of the fetus until after the surgery,” Taylor said.

SB 31 states that physicians can perform an abortion on a patient who faces “a serious risk of substantial impairment to a major bodily function,” but does not clarify what exactly that means, said Karly Bruder, a law student at the University of Texas at Austin who also testified against the bill.

Bruder and others told lawmakers that Texas’ abortion ban has led people to leave the state out of fear of what kind of care they can expect if they become pregnant.

“Doctors and healthcare professionals are leaving the state in droves because they are afraid,” said another University of Texas at Austin law student, Gwynn Marotta. “There is a maternal healthcare crisis taking place and pregnant people will continue to die… the blood is on your hands because of these bans and because of these bills.”

Resurrecting Century-Old Laws?

Bruder was one of several at the hearing who also raised concerns that the bill would breathe new life into an unresolved legal question about the status of Texas’ pre-Roe abortion laws.

Texas’ current abortion laws prohibit criminalizing or otherwise going after the person who undergoes the abortion. But, the pre-Roe statutes leave the door open to criminalizing the person who terminated their pregnancy, and criminalizes anyone who “furnishes the means” for an illegal abortion. Texas’ abortion funds—nonprofit groups that help pay for out-of-state abortions—have argued in court that this clause could be used to pursue criminal charges against them.

These laws, originally written in the 1800s, were put on ice by the U.S. Supreme Court’s ruling in Roe v. Wade. They remained on the books but unenforced for almost 50 years. In 2004, the 5th U.S. Circuit Court of Appeals ruled that the laws were “repealed by implication,” a ruling that a federal district judge reiterated in 2023.

But Attorney General Ken Paxton, conservative lawmakers and anti-abortion attorneys argue these pre-Roe statutes went back into effect as soon as Roe was overturned. There was a lawsuit challenging this question in court immediately after the decision, but it was never fully resolved.

SB 31’s clarifying language would apply to the pre-Roe statutes, as well as the more recent bans, raising concerns from some reproductive rights advocates that it’s a backdoor attempt to more fully revive these laws.

Elizabeth Sepper, a law professor at the University of Texas at Austin, said she’s skeptical that Republican lawmakers see that as a necessary step, since they believe these laws are fully in effect.

“If they didn’t include language about the pre-Roe statute, then I think we would have tons of resistance from people who are concerned about reassuring doctors, because then they’re still going to worry that they could face enforcement under the pre-Roe law,” she said. “I don’t see this as a meaningful step to change the status of that law.”

A companion bill, House Bill 44, has not yet been scheduled for a committee hearing. The committee also heard clashing testimony on two other bills cracking down on abortion pills, out-of-state travel and other ways Texans are evading the abortion ban.