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The Long View: Texas, Wisconsin, and the Game of Inches

6 min read

The pro-life movement is on the march, using legislation modeled on the Americans United for Life model legislation, which has been duplicated in similar or identical legislation in seven states so far. The Women’s Health Defense Act, written by the AUL, provides states with a template to model their legislation after in order to limit abortions to 20 weeks.  The approach signals a tectonic shift in the pro-life movement’s approach, one in which they are attempting to incrementally erode Roe v. Wade over the long term.

The progressive left is predictably enraged by AUL’s shift in tactics, from its sonogram legislation to its move to limit abortions to 20 weeks and require that abortion clinics meet the same standards as ambulatory surgical centers. From Alternet:

When the “right to know” bills that required mandatory ultrasounds — sometimes transvaginal ones — before abortions were introduced or passed, in state after state, from Virginia to Texas to Pennsylvania, was that a matter of chance?

Of course not: none of these trends were the product of diabolical mind-sync on the part of anti-choice legislators. Instead, these bills arise from the tradition of blueprint legislation — the practice of borrowing bill prototypes or model bills from a central national entity and then adapting them for introduction in statehouses. The practice is used on both sides of the aisle, but is particularly insidious in the case of anti-choice bills, part of the “war on women”– the campaign to erode Roe until it’s all but nonexistent.

AUL’s more controversial legislation involves model legislation for justifiable homicide, specifically enabling the husbands or boyfriends of pregnant women seeking abortions to employ deadly force in order to stop the abortion.  The Pregnant Woman’s Protection Act succeeded in Oklahoma and Missouri, but in a very limited form.  Subsequent versions of the bill in South Dakota, Nebraska, and Iowa were written to apply to third parties, such as the husbands and boyfriends of pregnant women seeking an abortion.

Omaha’s Deputy Chief of Police David Baker warned that the legislation “could be used to incite violence against abortion providers,” and the South Dakota Governor’s Office referred to the version of the bill before the South Dakota legislature as a “very bad idea.”  South Dakota eventually pulled the bill after a national outcry following a Mother Jones article outlining the potential for the bill’s use as a defense in the murder of abortion doctors and abortion clinic personnel.

Even the director of Operation Rescue, Troy Newman, characterized his reaction as one of “shock” after reading the bill:

“The pro-life movement, by definition, is in favor of protecting human life from the moment of conception to natural death, and we reject all forms of violence.”

Other pro-life activists like David Leach of Iowa reacted to the bill with enthusiasm, noting that it could deter abortion providers from continuing to provide services in South Dakota:

“There may be something I’m overlooking, but from all appearances, this bill would certainly justify an individual taking the life of an abortionist in order to save human lives.”

The Nebraska legislator who introduced Nebraska’s version of the AUL bill, Mark Christensen, said that the AUL had helped draft the language of his bill, which was nearly identical to that of South Dakota’s legislation, shelved a week before Christensen introduced his bill to the Nebraska legislature.  Christensen decided to narrow the scope of his bill to protecting mother and child, a statement that implicitly acknowledges the potential for the bill to legalize vigilantism.

The Future

Those who support abortion rights are becoming increasingly cognizant of the fact that the pro-life movement seems less than deterred by the fact that their AUL model legislation will eventually wind up in the courts. In fact, it appears that this is part of the strategy in Texas, Wisconsin, and other states that have passed such legislation only to wind up in court fighting injunctions.

The goal is incremental advancement towards reduced abortion availability, and the pro-life movement clearly believes it has a chance of gaining traction in the courts for a fight before the Supreme Court.

In Texas, the first round of the battle over the Women’s Health Defense Act began in March 2013, when State Rep. Jodie Laubenberg (R-Parker) filed H.B. 2364, the Preborn Pain Act, which started an epic battle that consumed the Texas Legislature from March onwards.  The bill failed in the regular session, was revived in a special session and filibustered by State Senator Wendy Davis, who appeared to fail when her filibuster was struck down for a third violation, but it was later revealed that Republicans had failed to get their vote in on time.  Governor Rick Perry called a second special session, and the bill was revived as SB. 1, and both sides in the debate staged rallies and marches at the Capitol on Monday, July 8, 2013, culminating in a spectacular scene where the pro-choice side marched up the Capitol sidewalks directly into the pro-life rally while chanting “Come and take it.”

A state Democratic Party that hadn’t won a statewide office since 1994 suddenly seemed revitalized and  reinvigorated, having twice stopped a signature piece of Governor Rick Perry’s legislative agenda. Governor Perry’s determination in pushing the legislation through seemed to come into some form of context when he announced his decision to abandon a re-election campaign in 2014 on the same day the State Senate began hearing testimony on SB 1.

The battle was a game of inches and minutes, where the Republicans were forced to retroactively date the vote record in the first special session after the roar of protesters in the state Capitol Building contributed to their inability to record their votes before midnight.  This week, the Texas Senate has again taken up the battle of inches and minutes, and Republicans seem determined to win the battle of inches and minutes special session by special session. Neither side is willing to give an inch, because each side seems confident of ultimately prevailing in the courts, which will inevitably be the next battleground for Texas and seven other states who have passed similar legislation.

The pro-life lobby recognizes the conservative shift in the Supreme Court, and the willingness to split differences on critical social issues in their jurisprudence.  Such a willingness was on full display in the Court’s DOMA and Prop 8 decisions, and pro-life activists recognize that 20 weeks isn’t an outright ban on abortion.  Today, the move is towards 20 weeks; if the shifting timeframe is upheld in the courts, the momentum will shift to limit abortion availability by a week or two in the future as well.

Wendy Davis concedes that the bill will likely pass the second special session, but says that the battle line is beginning.  Davis has avoided comment on the possibility of a future gubernatorial campaign in 2014, but longtime Democratic observers are privately voicing concern that her defeat in 2014 could damage the 2018 prospects of San Antonio Mayor Julian Castro while also opening up Davis’s Senate seat for a Republican.

The game of inches in Texas continues to develop and encompass much more than an abortion bill.  From the Governor’s Mansion to the 10th District of Texas to San Antonio and even the 2016 presidential election, Texas’s abortion fight carries with it implications for the national scene and the future of Texas partisan politics.  In winning a fight over a bill limiting abortion availability, Rick Perry may have just galvanized state Democrats for a resurgence that could eventually lead to an inch by inch re-emergence of Texas as a blue state.  While Democrats concede that the progress towards a blue Texas could take a decade or more, this moment in Texas history could very well be the spark to lead to that resurgence.

Texans take their part-time legislature seriously, and there’s a palpable sentiment among the wider community here in Austin that a second special session and third attempt at passing this legislation is too much, even among Texans who lean pro-life.  As more people become aware of the bill’s genesis in AUL model legislation, and AUL’s links to justifiable homicide model legislation in South Dakota, Nebraska, and Iowa, it’s becoming easier for Democrats to paint the legislation and its authors as extremist by association. Given the bifurcation between pro-life activists like Operation Rescue Director Troy Newman and Iowa anti-abortion activist David Leach, the model legislation advanced by the AUL has the potential to divide even pro-life advocates against each other.

The game of inches is on in Texas, with history in the balance.