Update:
8:06 a.m. Oct. 2: This story was originally published on Sept. 16.
US Elections 2024: How to weigh the abortion debate
After Roe was overturned in 2022, the state Legislature became the authority on abortion rulemaking in Texas.
By Julia James
Are you ready to cast your ballot in the Nov. 5 general election? The Dallas Morning News is here to help you vote with confidence with Back to the Ballot – a personalized voter education newsletter. Get started at dallasnews.com/ballot.
Increasingly restrictive laws, high-stakes court decisions and a new world of women’s health care — the past four years have seen massive shifts in abortion policies.
The U.S. Supreme Court overturned the federal right to an abortion in 2022, resulting in a near-total ban on the procedure in Texas and elsewhere, and policies that vary from state to state.
Democrats in Texas and across the nation have made access to abortion and other reproductive healthcare the centerpiece of 2024 campaigns. Republicans, who had been trying for decades to limit access to abortion, are committed to protecting the status quo.
Where are decisions about this issue made?
The 2022 Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization ended nearly 50 years of federal abortion protections and returned the question to the states, creating a patchwork system of abortion regulations.
In Texas, performing an abortion at any stage of pregnancy is a felony unless there is a risk of death or “impairment of a major bodily function” for the pregnant person. What constitutes an impairment is not defined in the law, and it has fallen to courts and the state medical board to interpret where those lines are drawn.
President Joe Biden has taken some action to direct how federal agencies implement laws relating to medical emergencies or crossing state lines to receive medical procedures. A national law protecting or outlawing abortions would have to be approved by Congress, but is unlikely to pass given the narrow majority each party has held in recent years. The president also could choose to sign or veto such legislation if Congress approves it.
Who are the key elected officials who impact this policy?
Before Roe v. Wade was overturned, states could impose certain restrictions as long as the right to an abortion remained intact. Legislators in predominantly Republican states such as Texas tended to pass bills putting limits on abortion, many of which have resulted in legal challenges and small differences from state to state. Those included prohibiting the procedure after a certain number of weeks of pregnancy or creating rules for the medical professionals performing the abortions.
After Roe was overturned in 2022, the state Legislature became the authority on abortion rulemaking in Texas.
State lawmakers passed two significant restrictions in 2021. They approved a “trigger ban” that would prohibit abortion except for medical exemptions if Roe v. Wade was overturned. Senate Bill 8 went into effect immediately and banned abortions after a fetal heartbeat could be detected, usually around six weeks. Both laws prohibit prosecution of the pregnant person.
Consequences for medical professionals under the state’s bans could be severe, including fines up to $100,000 per abortion, jail time and loss of medical licenses. SB 8 also allows private individuals to bring civil suits against anyone who performs or aids in a restricted abortion.
Abortions fell sharply after Texas’ bans went into effect, dropping to 21 in the first five months of 2024 from over 50,000 in 2021, according to Texas Health and Human Services Commission data. Texas also saw an increase in the fertility rate, or births among reproductive-age women after the restriction went into place. The 2022 rise was the first time the fertility rate increased since 2014, with most of the additional births in that window occurring among Hispanic women.
Although the legislature is the primary authority on abortion, judges play an important role in clarifying gray areas lawmakers may not have anticipated. Lower court judges and members of the state supreme court are elected in Texas for four or six-year terms.
The president also indirectly affects abortion policy by appointing federal judges and Supreme Court justices. As legal challenges continue to make their way up the courts, these judges will continue to have an impact on abortion policy.
What decisions have been made recently that have had an impact on this issue?
In states like Texas with near-total abortion bans, the courts have been largely asked to determine how to implement exceptions.
In Zurawski vs. State of Texas, women who were denied abortions despite dangerous pregnancy complications sued the state to clarify when doctors can provide medically necessary abortions. The gray area around when a medical condition is life-threatening or risks “impairment of a major bodily function” is something doctors have been wary to decide given the severe penalties for making the call incorrectly.
The plaintiffs described taking trips out of state worried they would bleed out on the plane, spending time in intensive care after going into septic shock, and carrying pregnancies to term only for the child to die hours later. The Texas Supreme Court found the issue in those circumstances was not with the law, but with the plaintiff’s doctors who could have provided care earlier and did not.
The Texas Supreme Court also sided with the state in the case of Kate Cox, a Dallas-area woman who sought an abortion because of a likely fatal fetal diagnosis. Cox’s doctors advised her that carrying the pregnancy to term could be harmful to her health and future fertility, which her suit argued should fall under the “impairment of a major bodily function.” The court disagreed, and Cox ultimately left the state for the procedure.
Some other court cases have upheld access to some forms of abortion, such as the U.S. Supreme Court’s decision on mifepristone, an abortion medication. The court said it was not the correct venue to challenge the FDA’s approval of the drug.
For Texans trying to leave the state for an abortion, funds that provide financial assistance to people seek abortions have become a focus of the debate. The funds mostly suspended operations after the Dobbs decision due to confusion about whether their services were still legal, but resumed in the spring of 2023 after a court ruling.
What issues are likely to be at the center of this election?
Republicans have held the majority in the Texas House and Senate for two decades, making major changes to abortion laws unlikely here.
Any state legislation would likely center on clarifying medical exemptions, as lawmakers did in 2023 for ectopic pregnancies and pre-labor ruptures. The statute was amended to make these specific medical conditions a defense from prosecution.
At the national level, abortion is at the center of numerous campaigns.
Republican presidential nominee Donald Trump previously supported a national ban on abortion at both 15 and 20 weeks of pregnancy but recently said he would not sign such legislation if reelected. Instead, he has supported states’ rights to establish rules governing the procedure.
Democratic nominee Kamala Harris has said she supports a federal law that makes abortion legal across the U.S. She cosponsored legislation to protect access to the procedure during her time in the Senate.
What North Texas races should I be paying attention to?
Abortion is a significant issue in the U.S. Senate race between incumbent Sen. Ted Cruz, R-Texas, and U.S. Rep. Colin Allred, D-Dallas.
Cruz has long supported abortion restrictions during his 12 years in Congress, co-sponsoring bills to withhold federal money from centers performing abortions, require burial or cremation of fetal tissue, and limit abortion medication. Cruz also introduced a bill to protect IVF after the procedure made headlines for being thrown into legal jeopardy in Alabama.
Allred has also co-sponsored multiple bills on the topic, including grant funding for abortions after the Dobbs decision and a bill legalizing the procedure. He has also co-sponsored a bill protecting access to contraception and IVF.
Because the state legislature will be the key decision maker on any abortion rules in Texas, interested voters should carefully consider the candidates’ positions on abortion, medical exceptions to the state’s ban and other women’s health issues.
