Texas Republicans Move to Prosecute Abortion Patients & Criminalize Travel

Trojan Horse 2.0

Texas needed its own email today, folks. But please read through no matter where you’re from: Texas is a testing ground, and this bill is a model for what the anti-abortion movement wants everywhere. They’re handing us a road map of their plans, and we’d do well to pay attention. -Jessica

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Texas Republicans are hellbent on punishing abortion patients and anyone who helps them—and this week they’re pushing sweeping legislation that does both.

On its face, Senate Bill 2880 is already extreme: It expands Texas’s ‘bounty hunter’ law, letting private citizens file $100,000 lawsuits against anyone who manufactures abortion pills, brings them into the state, or “provides” them to patients—language so vague it could mean almost anything. It also hands the Attorney General power to sue on behalf of fetuses, and even allows lawsuits against lawyers and judges who might intervene.

The idea is to strip patients of every kind of support, leaving women isolated, afraid, and unable to ask their community for help.

And that’s just what Republicans admit the bill would do.

Like the Trojan Horse bill the GOP tried to sneak through a few weeks ago, SB2880 has a hidden aim: reviving Texas’s 1925 abortion ban—a law that opens the door to prosecuting patients and anyone who helps them. That’s right: Furious they were foiled the first time, Republicans are making another run at bringing back the zombie law.

It’s Texas Trojan Horse 2.0.

The legal experts¹ I’ve spoken to say the goal is clear: Despite Republican denials, this is a bill designed to criminalize women.

There’s a lot going on here, so I want to make this easy for you:

If you remember everything that went down with the Trojan Horse bill and want to get straight into SB2880, skip ahead to The New Danger. If you need a refresher, read the Background first. (The context is super important here, so read it all if you have the time!)

And remember: This is complicated on purpose. Anti-abortion activists and legislators want voters to be too confused and overwhelmed to dig into these bills. That’s what Abortion, Every Day is here for. So let’s settle in and wade through the shit-show together.

Background

Back in March, I wrote about a Trojan Horse bill that Republicans said would ‘clarify’ (🚩) the state’s abortion ban and ensure that doctors could give patients life-saving care without fear of criminal charges or lawsuits. The legislation had bipartisan support, and lawmakers on both sides were getting glowing headlines for adding a so-called ‘exception’ to the state’s ban.

The truth, though, was that SB31 contained language that could revive a 1925 abortion ban. That old law allowed for the prosecution of anyone who helped someone get an abortion, and potentially the criminalization of patients themselves. That’s because unlike Texas’s current ban, the century-old law doesn’t exclude patients from prosecution.

Thanks to tips from folks on the ground, Abortion, Every Day was able to flag that danger. Our reporting helped set off a domino effect, ending with legislators amending SB31 to make sure it couldn’t revive the old ban.

(For a good breakdown of what went down behind the scenes, read Texas Monthly.)

Throughout that process, Republican lawmakers insisted that the bill’s goal wasn’t to revive the old ban, and that activists were just being paranoid. But as I pointed out at the time—Attorney General Ken Paxton has been wanting to use that 1925 law for years: He issued an advisory the same day Roe was overturned declaring the old ban enforceable, and repeated the claim in an updated advisory three days later.

A federal court later ruled the zombie ban was “repealed by implication”—meaning you can’t enforce some old-ass law if it’s been replaced by newer ones.

Paxton was pissed: He knows this old ban would supercharge his ability to prosecute people over abortion, so he’s desperate to make it enforceable. Republicans figured SB31—a bill that claimed to help save women’s lives—was the perfect vehicle to do just that.

The strategy? Republicans think if they can pass a bill that references or amends the old ban, it negates the legal argument that the law is no longer in effect.

Now you understand why they were so irritated when we mucked up their plans and made them change the legislation!

The New Danger

That brings us to today: still furious over having to amend SB31, Republicans now think they can deliver the old ban to Paxton using SB2880. They’re using the exact same strategy—defining “criminal abortion law” in the bill to include “Chapter 6-1/2, Title 71, Revised Statutes.” You guessed it! That’s the 1925 ban.

Unlike last time around, though, Republicans now say they won’t amend SB2880 to keep it from reviving the old law. So after all that bitching and moaning that we were just being paranoid about SB31—it turns out they were doing exactly what we said they were.

And again, SB 2880 is already a hot mess of extremism. Even without the 1925 ban, this bill would strip abortion patients of vital community support and rig the system so no one can fight back: The bill blocks courts from striking the law down and allows lawsuits against lawyers and judges who try.

Most importantly, it gives Paxton sweeping power over abortion enforcement—including that century-old ban he’s been itching to bring back. Texas Sen. Carol Alvarado said it plainly yesterday:

So what happens if Paxton is able to use the old law? Well, the experts I’ve spoken to tell me it’s about as bad as it gets:

Texas could prosecute teen rape victims who leave the state for abortion care, women with nonviable pregnancies who don’t want to give birth to dead babies—and anyone who helps them escape the state.

I wish this was hyperbole.

Because the old law makes it illegal to “furnish the means” to an abortion, prosecutors could go after anyone who helps a patient. And abortion funds will be first on Paxton’s list—it’s not just organizations and activists at risk.

Under the 1925 ban, a husband who drives his wife to an out-of-state abortion could face prison time—same for a clergy member who simply texts someone the URL to a clinic. That’s how vague “furnishing the means” really is.

And while Republicans claim that they’d never ever go after patients, SB2880 doesn’t just open the door to arresting women—it’s written as if that’s the plan.

If lawmakers had no intention of targeting women, they would have said as much in the legislation when citing that 1925 ban. In other sections of the bill—like the wrongful death provisions—Republicans go out of their way to exclude women from liability. But when they cite the old criminal law? No such exclusion. (Basically: If he wanted to, he would.)

When Democrats expressed concern on the Senate floor yesterday that the bill would allow for the prosecution of women, sponsor Sen. Bryan Hughes did some clever maneuvering:

“You can look at every abortion statute in Texas history going back to the 1800s, to the 1900s, to this century, and you will not find one single case. You will not find a single case where a mom was prosecuted, not under the 1925 statute or its predecessor or any current ones. It's false. It's false.”

First of all, Hughes’ claim that Texas doesn’t have “one single case” just isn’t true. A report from Pregnancy Justice found there were at least six pregnancy-related arrests in Texas just in the first year after Roe was overturned. Regardless, the point isn’t whether people have been arrested in the past—but what Republicans plan to do moving forward. On that point, Hughes was silent.

Instead, the legislator implored anyone watching to “look at the words of the bill.” It’s a slick way to lie—because Republicans don’t need the bill to say they can arrest women. They just need to revive the law that lets them.

And we all know there’s a big difference between what a bill says and how its language will actually be used in court. For example, Hughes also said that “there’s no reference to travel” in SB2880. But that doesn’t mean shit!

Under the 1925 ban, “furnishing the means” includes helping someone leave the state—which lawyers say could be prosecuted as a felony. Paxton argued this himself during Fund Texas Choice v. Paxton, in a motion to dismiss:

“[C]riminalization is a means to an end—the protection of human life, including the life of the unborn. That interest continues whether the Texan mother seeks an abortion in Denver or Dallas, in Las Cruces or Lamesa. When that procurement takes the form of a bus ticket for the pregnant Texan to an abortion clinic, or the paying from Texas of the cost of a pregnant Texan’s hotel room adjacent to that clinic, it does not matter if the travel and hotel are in Albuquerque or Austin—the procurement in Texas of the means of an abortion has intruded upon the State’s interest in the protection of human life.” (Emphasis mine)

In other words, Texas Republicans want to criminalize leaving the state for abortion care—and SB2880 could end up being a de facto travel ban.

Think about it this way: If Ken Paxton had the power of the 1925 law on his side, he could have arrested Kate Cox—the Texas mother who had to flee the state for care when she found out her pregnancy was dangerous and doomed.

He could have arrested Dr. Austin Dennard—a Dallas OBGYN who left the state after finding out her fetus had a fatal condition. Lauren Miller could have been arrested, too. After one of her twins was diagnosed with a severe abnormality, she traveled to Colorado for a reduction abortion to give the other fetus the best chance at survival.

Any patient who escaped the state for vital healthcare could be brought up on charges. So could the family members who drove them there, the friend who lent them money, and the organization who booked their hotel room.

They want to take out patients’ support system one by one. That way, it’s a lot easier to target the patients themselves.

Coming Tomorrow

Believe it or not, there’s still more to cover: what happens next with SB2880, how the bill serves as a model for the rest of the country, and all about the world’s worst man using Texas as his personal anti-abortion testing ground. I’ll share it all tomorrow in the regular daily report.

Until then, please spread the word—especially if you live in Texas or know someone who does.

1. Just like last time, I’m talking to lawyers who can’t go on the record—since they’ll likely be involved in litigation if this bill passes.