URGENT: The Texas 'Exceptions' Bill is a Trojan Horse
SB31 & HB44 a would allow the state to prosecute abortion funds, helpers—even patients
Texas Republicans are poised to pull a fast one: They’ve convinced Democrats and doctors to support a bill they claim will protect life-saving abortion care and ‘clarify’ the state’s ban. But the rapidly advancing “Life of the Mother” legislation is a Trojan Horse—there’s a 100-year-old ban hiding inside, ready to be revived and used to prosecute abortion funds, helpers, and possibly even patients.
Legal experts I spoke to in Texas called it “the most dangerous” anti-abortion bill currently before the legislature. So how has this flown under the radar?
Blame a mix of GOP sleight-of-hand and pro-choice politicians so eager for a win—and so desperate to ease the suffering of Texas women—that they’ve missed the fine print. To be fair, it’s not an easy catch: What’s happening is buried in a maze of dense language and historical statutes. I’m going to do my best to lay it out for you, so please stick with me—this one really matters.
Chances are, you’ve heard about Senate Bill 311: It’s been framed as Republicans’ oh-so-generous move to ensure doctors can provide life-saving abortions without fear of civil or criminal charges. Texas newspapers and national headlines describe it as a bill that will “expand protections” and “clear confusion” around the state’s ban, while lawmakers on both sides of the aisle claim it will save women’s lives. The Texas Medical Association has endorsed the bill, as have anti-abortion groups.
In short, SB 31 is being sold as a rare moment of bipartisan agreement—a good-faith effort to help doctors and patients.
The truth, however, is that Republicans are exploiting Texans’ desperation to stop women from suffering and dying—using that urgency to pass a law that will ultimately broaden their power to punish.
At the heart of this deception is a 1925 abortion ban. This Texas law made performing an abortion a felony unless it was done to save the patient’s life. But unlike the state’s modern bans, the century-old law also made it a felony to help someone “procure” an abortion—and it didn’t explicitly protect patients from prosecution. (Remember this for later.)
Obviously, this 1925 ban was unenforceable for decades under Roe v. Wade—but after Dobbs, Texas Republicans argued it could go back into effect. Attorney General Ken Paxton, in particular, was eager to use the law: the same day Roe was overturned, he issued an advisory declaring the 1925 ban enforceable—and repeated the claim in an updated advisory three days later.
Why was he so eager to dust off a 100-year-old law? In part, because it would let the state start prosecuting people immediately. (Texas’ trigger ban couldn’t be enforced until the Supreme Court issued its formal judgment in Dobbs, which could take months.) But more importantly, Paxton knew that reviving the century-old ban would dramatically supercharge his ability to prosecute. Remember, the 1925 law would explicitly allow Paxton to prosecute abortion funds that help patients ‘procure’ care, and open the door to targeting patients.
What Republican legislators did next made it even clearer that the punishment was always the point: the ultra-conservative Texas Freedom Caucus started sending threatening letters to companies that promised to reimburse employees for out-of-state abortion travel—citing the 1925 ban. They also targeted abortion funds, warning that donors, employees, and volunteers could be prosecuted under the 100-year-old law.
Thankfully, Texas funds sued to stop that from happening. Paxton lost the legal battle in 2023, when a federal court ruled that the zombie ban had been “repealed by implication.” (Translation: you can’t enforce a nearly century-old ban when newer laws have already replaced it.) And while Paxton and Texas Republicans continued to claim the old ban was still on the books, that federal ruling blocked them from enforcing it.
You have to imagine Paxton was livid—abortion funds are the ones helping patients access out-of-state care and abortion pills, and the court had just shut down his best shot at punishing them for it.
That brings us to the present day, where Republican legislators have figured out how to give Paxton exactly what he wanted: the legal firepower of that 1925 ban.
Here’s how it works. The “Life of the Mother” bill—the one Republicans claim will clarify Texas’ abortion ban—wouldn’t just amend the current law. SB 31 would also add so-called ‘clarifying’ language to the 1925 ban. Why? Republicans will say they’re just being thorough—protecting women and doctors in every abortion statute. But here’s what they won’t admit: amending the 100-year-old law negates the argument that the ban is no longer in effect. (At least, that’s what they’ll argue in court.)
In other words, anti-abortion politicians get the best of both worlds if this bill passes: they get to look like they give a shit about women’s health and lives, while expanding the state’s power to punish.
And let’s be clear about how serious that punishment would be. One Texas abortion rights lawyer told me this would open the door to prosecuting abortion funds, pregnant people, and the families or friends who help them access out-of-state care. And that’s regardless of circumstance—rape, incest, and fatal fetal anomalies are not exceptions under Texas’ new or old bans.
So what now? The Texas attorneys I spoke with—none of whom can speak publicly, since they’ll likely be involved in litigation if the bill passes—agree on one thing: this legislation will do more harm than good.
Beyond giving Paxton and other anti-abortion Republicans another shot at reviving the 1925 ban, SB 31 would also force doctors to take a state-mandated “education” course on Texas abortion law—one likely to be crafted by anti-abortion activists.
I warned about this just last week, pointing to what happened in South Dakota when lawmakers passed a similar ‘med ed’ mandate: the state health department teamed up with the extremist American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG)—a group that insists abortion is never necessary to save a patient’s life—to produce an “educational” video for medical providers.
The only real upside to SB 31 is that it removes some vague language about “life-threatening conditions” from Texas’ abortion ban—but that’s a nominal change. It doesn’t make abortion any more accessible. And if the trade-off for striking a few bad words from the law is putting abortion funds and patients in harm’s way, the answer should be obvious.
I’ll keep you posted on SB 31 as I find out more, and will let you know as soon as it comes back before Texas legislators. In the meantime, remember to look out for those red flags in abortion legislation—Republicans are counting on us to miss them.
The other bill you highlighted the other day, SB 2880, is especially alarming as well. Aside from all the provisions that make it as extraterritorial as possible, it goes to new lengths to preclude any type of offensive suit to enjoin its operation. It does the whole bounty-suit thing about how it won’t be enforced by the government, but only by civil suits by individuals, but then it also creates a qui tam action to enforce it, which would seem to involve the government in its enforcement. And it also creates a “parens patriae” cause of action on the part of the AG “on behalf of unborn children of residents of this state” against “a person who violates any criminal abortion law of this state…”
It creates fee-shifting liability on the part of litigants and lawyers who seek injunctive relief against any abortion-related law of the state, including taxpayer-funding laws.
It grants sovereign immunity, in state or federal court, to any state political subdivision or employee against any suit challenging this statute on any grounds—which is obviously meant to deprive courts of subject matter jurisdiction to hear any such suits. And it goes beyond that to say that no state court shall have any jurisdiction to hear such a challenge. And any ruling that disregards such immunity shall be considered void.
The craziest thing of all is that it creates a cause of action against any judge, or any clerk who issues a ruling of a judge, who enjoins any provision of the statute, or who obeys any such injunction. The damages in such an action include injunctive relief, compensatory damages, punitive damages of not less than $100K, and costs and fees. And any judge or anyone who is sued as a defendant in such an action has no immunity and will not be represented or indemnified by the AG’s office! So in other words, the legislature is saying that any ruling by any judge that invalidates this law is void, and any person may then sue the judge for making such a ruling, and the judge will not be defended by his or her employer the state.
What organization can help sue to stop this? And how do I send them $$?