Groups working to eliminate the right to abortion in Texas are rethinking their legislative strategies now that Judge Brett Kavanaugh, a conservative, has a seat on the U.S. Supreme Court.
Two years ago, the court struck down one of Texas' most restrictive anti-abortion laws in Whole Woman's Health v. Hellerstedt. House Bill 2 required clinics that provide abortions to have surgical facilities and doctors to have admitting privileges at a nearby hospital. When it first went into effect, the law forced half the state’s clinics to close.
John Seago, legislative director for Texas Right to Life, said he's “cautiously optimistic” the court will uphold such laws now that Kavanaugh's on the court and pushing it further to the right ideologically.
Seago doesn't think this new court will overturn Roe v. Wade in short order, though. (Roe is the legal precedent upholding abortion rights in the U.S.)
“That doesn’t mean there is no hurdle,” he said. “We have seen people imprudently say, ‘States can do whatever they want now.’"
But groups that support abortion rights in Texas say they think Roe is in danger.
“Kavanaugh’s confirmation hearings made it clear that he will be a vote to end Roe v. Wade or gut it by ignoring the precedent in Whole Woman’s Health v. Hellerstedt and allow the Texas Legislature free rein to criminalize abortion and punish pregnant Texans,” said Aimee Arrambide, the executive director of NARAL Pro-Choice Texas.
"The high hurdle is taken out of the way, but there is still another hurdle in place that we have to be mindful of. And his name is John Roberts."
Seago said he thinks the journey to overturning Roe and limiting access to abortion in Texas is still a long one. Kavanaugh replaced Justice Anthony Kennedy, whom Seago described as the main target of the anti-abortion movement. As the swing vote on the court, Kennedy often voted with the liberal justices in upholding abortion rights – and that was true in the 2016 case from Texas.
“The high hurdle is taken out of the way, but there is still another hurdle in place that we have to be mindful of,” Seago said. “And his name is John Roberts.”
Seago said Chief Justice Roberts, who is now the presumed swing vote on the court, has long resisted “the urge to change directions for political reasons.”
“He takes several steps before emptying out a decision or refining a decision that the court has done in the past,” he said.
That’s why Seago said he is pushing for a more strategic approach at the Texas Legislature. He said his group has “identified targets,” including legal questions regarding access to abortion. For example, he said he plans to push for a bill next session that would prohibit abortions in cases of fetal abnormalities that could lead to disabilities. He said a bill like that would force the court to consider the legal rights of disabled populations versus a woman's right to an abortion.
“That’s not just getting the first and fastest case we can before Roberts and letting him take over and be an activist judge,” Seago said. “That’s actually not going to work, knowing his history and philosophy.”
Not all anti-abortion groups – or Republicans – feel the same way.
In fact, the Republican Party of Texas platform, which was adopted this year, includes language aimed at abolishing abortion outright.
“We call upon the Texas Legislature to enact legislation stopping the murder of unborn children and to ignore and refuse to enforce any and all federal statutes, regulations, executive orders, and court rulings that would deprive an unborn child of the right to life,” the platform reads.
Seago said conservatives and anti-abortion groups have been debating this issue for the past two years. He said he's still trying to convince advocates that a complete abortion ban before the U.S. Supreme Court could backfire and that it would be better to slowly get the court to “back off” on past decisions.
New leadership at the Texas Legislature could change the calculus for anti-abortion groups. The midterm elections next month could usher in more Democrats, and the race for speaker of the House could determine what kind of legislation is considered.
Any bill Texas lawmakers pass in 2019 would take a long time to make it before the Supreme Court, Seago said, if it makes it there at all.
A law passed last year could land there. A provision in Senate Bill 8 prohibits a type of abortion providers say is the most common method during a second trimester. A lawsuit challenging it is scheduled to go before the Fifth Circuit Court of Appeals in November.
Overall, Seago said, the landscape doesn't change drastically with Kavanaugh on the court.
"Just because there are more conservative justices on the court, doesn’t mean the fundamental nature of the court has changed," he said. "So, it’s ... the responsibility of the states to pass prudent and dynamic legislation, to bring up those right questions, to move the court slowly in the right direction."
