Off the Kuff Rotating Header Image

That’s our Lege

In case you needed a clear example of the moral depravity of the “right to life” movement

So a couple of days ago State Sen. Robert Nichols, who has a consistent anti-abortion voting record, said at the Texas Tribune Festival that he would be willing to add a rape exception to Texas’ extremely strict forced birth laws. In other words, he’d be willing to support adding a provision to the existing law that national and state polling says is overwhelmingly popular, like in the 90% range.

This of course caused an immediate backlash among the most virulent of the forced-birth fanatics. Within a day or so, one of those groups announced on Twitter that they had rescinded their endorsement of Sen. Nichols, who I remind you again has been a stalwart ally and who – in fairly conditional and qualified language – offered support for an amendment to Texas law that would allow rape victims to legally access abortion, which is something that a huge majority of Texans support.

Okay. Now that you have all that, I want you to read the quote – on the record, for publication – that the leader of this organization gave in response to a question about why they no longer endorsed Sen. Nichols:

Sxxx, of Texas Right to Life, said it was “mind-boggling” to hear that other groups that bill themselves as pro-life would continue to support Nichols.

“It reveals a fundamental misunderstanding of what it means to be pro-life,” said Sxxx. “To say that you’re going to punish the child for a sin of the father — that misses the point. That’s pro-life 101.”

Yeah, the fact that there’s absolutely no mention of the mother in this quote is the perfect distillation of this warped and immoral viewpoint. Not even the possibility that the mother could well be a little girl, it not only doesn’t matter, it doesn’t even bear consideration. The person who is pregnant does not matter to them, not even a little bit. Their words make that clear. I could not illustrate this any better if I tried.

State delays report on maternal mortality until next year

Sorry, didn’t get to it, other things to do, you know.

Texas health officials have missed a key window to complete the state’s first major updated count of pregnancy related deaths in nearly a decade, saying the findings will now be released next summer, most likely after the Legislature’s biennial session.

The delay, disclosed earlier this month by the Department of State Health Services, means lawmakers won’t likely be able to use the analysis, covering deaths from 2019, until the 2025 legislative cycle. The most recent state-level data available is nine years old.

In a hearing this month with the state’s Maternal Mortality and Morbidity Review Committee, DSHS commissioner Dr. John Hellerstedt said the agency wanted to better align its methodology with that of other states, and that there hadn’t been enough staff and money to finish the review for a scheduled Sept. 1 release.

“The information we provide is not easily understood, and not easily and readily comparable to what goes on in other states,” Hellerstedt told the committee. “And the fact it isn’t easily understood or easily comparable in my mind leaves room for a great deal of misunderstanding about what the data really means.”

In a statement, DSHS spokesman Chris Van Deusen said the agency is reviewing its “internal processes” to try to develop more timely data.

“I expect we’ll be having conversations with legislators about what could be done to speed up the lengthy review process,” he said.

The setback comes four months before the start of the legislative session and two months before the midterm election, which has been dominated in part by the state’s new Republican-led abortion ban. Those restrictions have placed more scrutiny on the state’s maternal mortality rate, which is among the 10 highest in the country, according to national estimates that track pregnancy-related complications while pregnant or within a year of giving birth.

“There are a lot of us that want to know whether or not pregnancy in Texas is a death sentence,” said state Rep. Ann Johnson, a Houston Democrat and member of the Texas Women’s Health Caucus. “If we’ve got a higher rate of maternal mortality, we sure want to figure it out. You can’t figure it out if somebody’s sitting on the numbers, and that’s my worry.”

Like in other states, maternal outcomes in Texas are worse for Black women, who have died at about three times the rate of non-black women. This year’s findings were expected to drill further into the causes behind those disparities.

Rep. Shawn Thierry, a Houston Democrat who has described going through her own dangerous birthing experience, said the data is critical for understanding the role cesarean sections play in maternal deaths and whether implicit bias is playing a factor in the quality of maternal care for Black women.

“There is so much to unpack from the data,” Thierry said, adding that “no woman who chooses life should have to do so in exchange for their own.”

Members of the state’s maternal mortality committee, which compiles the official report, said they were disappointed by the decision to hold the preliminary findings.

“(We) do the work to honor the lives of women who lost their lives, and families that are forever impacted by the loss of a mother,” said Dr. Carla Ortique, the committee chair. “So there’s disappointment on both fronts: that we’re not honoring those women and families, and that we may be negatively impacting efforts to improve maternal health outcomes in our state.”

Pathetic. And typical. But don’t worry, even if the Lege has no current data on maternal mortality to take action on in the next session, they will be fully prepared to make abortion more illegal, because that’s what they care about. Daily Kos has more.

Plan B

I have three things to say about this.

On Friday, Gov. Greg Abbott told The Dallas Morning News that rape victims can take emergency contraception, like Plan B, to prevent a pregnancy. With abortion now banned in Texas, even in instances of incest or rape, the governor recommended the use of emergency contraception to ensure a victim of rape does not become pregnant.

But for the lowest-income people in Texas, emergency contraception isn’t widely accessible, advocates said — a consequence of the significant number of people of childbearing age who are uninsured and the state’s lack of programs that provide access to treatment like Plan B.

During a pre-recorded segment of Lone Star Politics, Abbott said of rape victims, “By accessing health care immediately, they can get the Plan B pill that can prevent a pregnancy from occurring in the first place. With regard to reporting it to law enforcement, that will ensure that the rapist will be arrested and prosecuted.”

[…]

After signing Senate Bill 8 into law last September, which banned abortions after about six weeks of pregnancy and didn’t provide exceptions for rape or incest, Abbott said the state’s goal was to eliminate rape. Abbott’s office did not return a request for comment on Saturday.

In 2020, Texas ranked 16th in the nation for total number of forcible rape cases per capita.

Emilee Whitehurst, the CEO of Houston Area Women’s Center, said a significant number of rapes aren’t reported, and the actual number of victims is higher than those that seek treatment at a hospital.

Whitehurst added that emergency contraception is not a substitute for abortion access in any way, but those responsible for the abortion ban in Texas have left victims of sexual assault with few options. She said it was insulting to hear that Plan B should be relied on to prevent pregnancies given the dangers victims of sexual assault already face.

“To presume Plan B could be a substitute for abortion care represents such a fundamental misunderstanding of the reality of women’s lives and our biology,” Whitehurst said.

While emergency contraception is available for purchase over the counter, it can cost $50 at a pharmacy. Some insurance plans cover the cost of emergency contraception, but those who are uninsured have to pick up that additional expense.

For women of childbearing age in Texas, more than a quarter had no health insurance in 2017 — the highest rate in the nation. This is caused, in part, because Texas has not expanded Medicaid and has one of the lowest eligibility standards in the country. A single parent with three children would have to earn less than $400 a month to qualify for Medicaid.

In addition to the lack of coverage, the state’s programs that target women’s healthcare don’t provide emergency contraception. Neither the Family Planning Program nor the Healthy Texas Women Program provide emergency contraception.

Title X clinics remain one of the few options for low-income people to access emergency contraception at an affordable cost. However, these federally-funded reproductive health clinics don’t operate in every community in the state.

1. How’s that plan to eliminate rape going, Greg? Making any progress on it?

2. Boy, it sure is a good thing that health care is so easily and affordably accessible in this state, especially for women and people of color and people who don’t have insurance.

3. It is true that Plan B remains legal in Texas, and that the author of SB8 insists that he doesn’t want to make Plan B illegal – for now, anyway. But come on, does anyone believe that the forced-birth fanatics don’t have the various types of emergency morning-after contraception in their sights? Those people already think Plan B is an abortifacient. It’s just a matter of time, unless there are other laws in place to ensure that it remains legal. In the meantime, here’s a question Greg Abbott will not want to answer: If a bill to ban Plan B passes the Legislature, would he sign it or veto it? We know what Beto would do. I think we can also be pretty sure about Abbott.

“Safe haven” laws are also not a replacement for abortion

Continuing a theme.

What are safe haven laws?

flurry of Houston baby abandonments in the ’90s led Texas to become the first state to enact a safe haven law in 1999.

Created as an incentive for parents in crisis who are unable to care for their newborns, the law allow parents to drop off babies 60 days or younger at any hospital, fire station or EMS station in the state, no questions asked.

The baby will then be protected and given medical care until a permanent home is found. Provided the baby arrives unharmed and safe, the parents avoid prosecution for abandonment or neglect.

Do people actually use the laws?

Roughly 400,000 babies are born in Texas each year, but data shows that a small fraction of people actually utilize the option.

Just 172 infants have been relinquished under the state’s safe haven law since 2009, according to data from the Department of Family and Protective Services.

Why?

Most families have likely never heard of it, said Sheila M. Katz, a sociology professor at the University of Houston.

This is especially true for middle- and low-income families who may not have the “extra bandwidth” to explore something until they’re in the situation, Katz said.

[…]

Katz said safe haven laws are “very good” at doing what they’re designed to do, but weren’t created to be an option for people unwilling to continue pregnancies.

“It’s taking a law and trying to make it look like a band-aid for bigger issues,” she said.

“If a woman is in an unhealthy relationship and decides to get an abortion to sever ties,” Katz added, “a safe haven law will not help in this situation.”

Or, to put it another way, people who choose to get abortions do so because they don’t want to be pregnant. There’s a separate decision made about what to do after giving birth once that one has been made. The impression I get is that the kind of person who would dump a baby at a fire station is someone who felt truly desperate and trapped and without any other option. While it is very likely that the post-Dobbs criminalization of abortion in Texas will increase that population, the availability of abortion pills and the still-robust abortion access network may mitigate that. I could be wrong, of course – we may in fact see enough of an increase in that population to drive an equivalent increase in the number of babies getting deposited at these locations. If you think that’s something to cheer about, well, you know what I think of you.

The gaps in Texas’ background check law

From Pro Publica:

In the spring of 2009, Elliott Naishtat persuaded his colleagues in the Texas Legislature to pass a bill that he believed would require the state to report court-ordered mental health hospitalizations for Texans of all ages to the national firearms background check system.

Nearly two years had passed since a student with a history of serious mental illness had gone on a deadly shooting rampage that left 32 dead at Virginia Tech. And Naishtat, then a Democratic state representative from Austin, argued that Texas was as vulnerable as Virginia had been to such mass shootings because it didn’t require the reporting of involuntary mental health commitments to the FBI’s National Instant Criminal Background Check System, known as NICS. Federally licensed dealers are required to check the system before they sell someone a firearm.

“This bill will ultimately save lives, and I hope you’ll give it your most serious consideration,” Naishtat said when he introduced the measure.

But 13 years after the legislation became law, following a string of mass shootings carried out by troubled young men, an investigation by ProPublica and The Texas Tribune has uncovered a major gap in the law and its implementation.

Despite language in Naishtat’s bill that says local courts should report to the state’s top law enforcement agency any time a judge orders any person, regardless of age, to receive inpatient mental health treatment, the news organizations found that they are not reporting juvenile records because of problems with the way the law was written, vague guidance from the state and conflicts with other Texas laws.

[…]

When it comes to the reporting of adult mental health records, the Texas law has been highly effective. By the end of 2021, the state had sent more than 332,000 mental health records — the sixth-highest number in the country — to the national background check system, according to FBI data.

Unlike adult records, juvenile records are tightly controlled under state law, which includes criminal penalties for officials who release them unlawfully. That has likely contributed to widespread confusion about the reach of the 2009 law, which does not differentiate between adults and minors, said Dru Stevenson, a South Texas College of Law professor whose research focuses on gun violence and regulation.

“Anybody dealing with either health records or juveniles are super skittish about preserving privacy and confidentiality,” he said.

Mike Schneider, a former Harris County juvenile court judge, said the 2009 law fails to account for nuances in the juvenile code. For example, the law requires the reporting of all court-ordered mental health commitments. But Schneider and other juvenile officials say that in many cases juveniles end up in inpatient treatment not through a judge’s order, but via treatment plans agreed to by mental health professionals working on their cases. Additionally, Schneider said he interprets the law to directly address only the mental health commitments of juveniles already in lockup, not those first entering the system.

As a result, he estimated that some 99% of juvenile mental health commitments in the state are not the result of the kinds of judicial orders spelled out in the 2009 law.

“It’s just a really, really, really tiny sliver and would miss most of the people who are juveniles who have court-ordered mental health services,” he said.

The Office of Court Administration convened a task force of clerks, judges and various state officials more than a decade ago to figure out how to increase the number of all mental health records being sent to DPS.

The resulting report, published in 2012, found that “DPS lacks the resources to assist the district and county clerks with reporting mental health information.” It made a number of recommendations for ensuring better reporting across the state, including that OCA distribute a reporting manual to clerks detailing the law’s exact requirements. But neither the report nor the resulting manual addressed the reporting of juvenile records.

The agency has since moved to remedy that.

“Recently, because of increased questions, we decided to update the quick reference table to make it even more clear that juvenile records should be included under those provisions, and an updated FAQ section will be going in the manual,” spokesperson Megan LaVoie wrote in an email last month.

Amid a lack of clear direction, courts across the state aren’t following the law as Naishtat intended.

[…]

Schneider, the former Harris County juvenile judge, said the Legislature should address the narrowness and ambiguity that has resulted in the widespread failure to report juvenile mental health records, though he said such an effort will require lawmakers to answer difficult questions about how to handle sensitive records. In his mind, the law should cover young Texans with troubling histories of bullying, animal cruelty and sexual assault, behavior that foreshadows what experts call “future dangerousness.”

“What do you do with kids who have tortured a cat or a dog or done something really cruel, sexually or not, to another kid?” he said. “Those are, I think, the ones that people really worry about, because that seems to be so strongly correlated with really, really bad outcomes in the future.”

This is a long story with a lot of detail, so go read the rest for yourself. I think I’ve captured the main points in my excerpts, so the real question is whether the Lege is even interested in trying to address the gaps in that law. On that score, there was no comment from either Dan Patrick or Dade Phelan, so at the least there’s a lot of work to be done to even get it on the radar. And in keeping with what I’ve suggested before, this isn’t a whole solution but a part of one. Combining a fix to the Naishtat law with a ban on most types of gun purchases by anyone under the age of 21 would be a start. But first, the will to act has to be there. We can have a say in that this November.

The Lege sure thinks a lot of companies need to be coddled

It’s kind of amazing, actually.

Texas banned 10 financial firms from doing business with the state after Comptroller Glenn Hegar said Wednesday that they did not support the oil and gas industry.

Hegar, a Republican running for reelection in November, banned BlackRock Inc., and other banks and investment firms — as well as some investment funds within large banks such as Goldman Sachs and JP Morgan — from entering into most contracts with state and local entities after Hegar’s office said the firms “boycott” the fossil fuel sector.

Hegar sent inquiries to hundreds of financial companies earlier this year requesting information about whether they were avoiding investments in the oil and gas industry in favor of renewable energy companies. The survey was a result of a new Texas law that went into effect in September and prohibits most state agencies, as well as local governments, from contracting with firms that have cut ties with carbon-emitting energy companies.

State pension funds and local governments issuing municipal bonds will have to divest from the companies on the list, though there are some exemptions, Hegar said.

“The environmental, social and corporate governance (ESG) movement has produced an opaque and perverse system in which some financial companies no longer make decisions in the best interest of their shareholders or their clients, but instead use their financial clout to push a social and political agenda shrouded in secrecy,” Hegar said in a written statement on Wednesday.

New York-based BlackRock, which has publicly embraced investing more in renewable energy, criticized Hegar’s decision.

“This is not a fact-based judgment,” a spokesperson for the company said in a written statement. “BlackRock does not boycott fossil fuels — investing over $100 billion in Texas energy companies on behalf of our clients proves that.

“Elected and appointed public officials have a duty to act in the best interests of the people they serve,” the spokesperson added. “Politicizing state pension funds, restricting access to investments, and impacting the financial returns of retirees, is not consistent with that duty.”

The other nine companies banned completely are: BNP Paribas SA, a French international banking group; Swiss-based Credit Suisse Group AG and UBS Group AG; Danske Bank A/S, a Danish multinational banking and financial services corporation; London-based Jupiter Fund Management PLC, a fund management group; Nordea Bank ABP, a European financial services group based in Finland; Schroders PLC, a British multinational asset management company; and Swedish banks Svenska Handelsbanken AB and Swedbank AB.

[…]

Texas energy experts said the intent of the law, and Wednesday’s announcement, was to punish financial firms that don’t want to invest in the backbone of Texas’ economy — oil and gas.

“But at the end of the day, it’s all about a rate of return,” said Ed Hirs, an energy economist at the University of Houston. “Quite honestly, fossil fuel companies, in particular oil and gas companies, have not been great performers in the (stock market) prior to this year.”

The Lone Star Chapter of the environmental group Sierra Club said Hegar’s “climate-denying publicity stunt will be costly for taxpayers.”

​​“Major financial institutions like the ones on this list are beginning to recognize that investments in fossil fuels bring significant risk in the face of an inevitable clean energy transition, and that addressing the financial risks of the climate crisis is essential to good business,” said Sierra Club Fossil-Free Finance Campaign Manager Ben Cushing. “The fact that the Texas Comptroller has arbitrarily picked a handful of companies that, despite their climate commitments, continue to have massive fossil fuel investments, shows that this is nothing more than a political stunt at Texas taxpayers’ expense.”

We’ve already determined that Comptroller Hegar is math-challenged, so this shouldn’t come as a surprise. We’ve also seen the Lege make similar laws to protect gun manufacturers and the country of Israel, about which more in a minute. I suppose one could make a protectionist case for this kind of legislative cherry-picking, and as someone old enough to remember the efforts to divest from South Africa in order to pressure it to abandon apartheid, there is certainly a moral case for this kind of law, if not for these specific ones. But if you’re going to go that route, you need to be clear about what you’re aiming at.

The firms on Hegar’s list are BlackRock, UBS Group, BNP Paribas, Credit Suisse Group, Danske Bank, Jupiter Fund Management, Nordea Bank, Schroders, Svenska Handelsbanken, Swedbank, and UBS Group.

Of the six firms that responded to the Houston Chronicle’s inquiries by press time, four deny that they are “boycotting” the oil and gas industry, even if they admittedly have some investments that reflect the growing influence of — and consumer and investor interest in — the environmental, social and governance (ESG) movement.

“As we noted in our response to the Texas Comptroller, Credit Suisse is not boycotting the energy sector as the bank has ongoing partnerships and strong client relationships in the energy sector,” said a spokesperson for Credit Suisse, based in Zurich. Spokespeople for BlackRock, UBS Group, and Schroders made similar points in disputing the comptroller’s “boycotting” label.

[…]

This is a different approach than the one taken by BlackRock, for example, which had $287 billion in assets invested in energy companies globally as of June, $108 billion of which is invested in Texas energy companies, a spokesperson said.

There are “many similarities” between BlackRock’s approach to investing in the fossil fuel industry and that of other major firms, such as JP Morgan, didn’t make the list, said Andrew Poreda, senior vice president and senior ESG Research Analyst at Sage Advisory Services, an investment firm based in Austin.

A “frequently asked questions” document prepared by Hegar’s office, raises questions itself about the state’s methodology, Poreda said. For example, the comptroller’s initial criteria included whether a firm had made public pledges to the Net Zero Banking Alliance or Net Zero Asset Managers Initiative, which call for net-zero greenhouse gas emissions by 2050, nearly three decades from now.

That’s not exactly radical territory. Oil and gas companies are openly talking about plans for the energy transition — including getting to net-zero emissions.

“Envisioning a different world in three decades hardly classifies as a boycott, and at this point is so far away that it is largely aspirational,” Poreda argues.

It doesn’t have to make sense, it just has to make the base think they’re owning the libs. That’s Republican policy in a nutshell these days.

To bring it back to the Israel example for a minute, that law has been mostly blocked by a federal judge, who ruled that an engineering firm that couldn’t get a contract with the city of Houston had its free speech rights violated by the Texas law. I Am Not A Lawyer, but it sure looks to me like the laws banning “boycotts” of fossil fuels and gun manufacturers are at least in the same neighborhood as the anti-Israel boycott law is. Credit Suisse and Blackrock probably don’t need the state of Texas’ business, but other red states are adopting similar laws, and at some point it does start to cost them real money. When that happens, the lawyers usually get involved. I don’t know what happens from there, but I won’t be surprised if that’s where it goes. The Chron has more.

I don’t know why anyone thinks that IVF will be safe in Texas

That’s what people are saying now.

Abortion bans across the country have thrown into question the fate of in vitro fertilization, an expensive medical process that helps people become pregnant.

But experts and anti-abortion groups say Texas’ laws shouldn’t apply to IVF treatment, and clinics across the state are proceeding with the procedures for now.

Similar to other “trigger laws” enacted to ban abortion after the U.S. Supreme Court’s reversal of Roe v. Wade, a Texas law passed last year broadens the definition of an “unborn child” to begin at “fertilization” and include “embryonic” stages.

That type of language can raise questions about the “personhood” and rights of embryos in IVF and other fertility treatments, said Dr. Natalie Crawford, who is co-founder of Fora Fertility in Austin.

In IVF, Crawford said, doctors use hormone injections to save more of a woman’s eggs during a menstrual cycle and take them out to fertilize them with sperm in a lab. The eggs are then allowed to grow into a blastocyst, or an implantation-stage embryo.

Crawford said this allows doctors to select the embryo they believe has the “highest chance of success” for a pregnancy to put back inside the woman’s uterus and save the other embryos so patients can try again or grow their family in the future. Doctors can also use these embryos to test for genetic diseases.

Once a person or couple no longer need the embryos, they decide whether to discard them as medical waste, donate them for scientific research or to donate them to another couple, she said. It’s this step in particular that is posing a question for IVF treatments in the face of abortion bans.

“The thing that we’re the most uncertain about is, ‘could it impact discarding embryos, like when somebody is done with their family and they have remaining embryos?’” Crawford said. “Or if they have genetically abnormal embryos, could it potentially make it harder to discard those?”

Some also worry about doctors’ ability to conduct genetic testing.

Right now, Crawford and other fertility doctors in Texas and other states are continuing IVF treatments because most laws against abortions focus on embryos during pregnancies, not outside of the womb.

“While they contain phrases like ‘every stage of human development,’ or ‘from the moment of conception,’ which makes us nervous, they are written in a statute that is clearly about terminating an established pregnancy,” said Sean Tipton, chief policy and advocacy officer for the American Society for Reproductive Medicine.

The American Society for Reproductive Medicine broke down “trigger laws” across the country, based on its lawyers’ analysis, and says Texas’ trigger law “does not appear to be applicable to IVF and reproductive medicine services prior to implantation of embryos.”

[…]

In Arkansas, Alabama and Oklahoma, attorney generals’ offices have clarified anti-abortion laws should not have implications for IVF, but Idaho’s attorney general said it would be up to local prosecutors to decide how to enforce the state’s trigger law, according to NBC News. Texas Attorney General Ken Paxton’s office did not respond to a request for comment from The Texas Tribune.

[…]

[John] Seago said Texas Right to Life has concerns about the “destruction” of “excessive” embryos, particularly in medical research, but the issue is not one of its priorities for Texas’ 2023 legislative session. Instead, its priorities include enforcing existing laws against abortion and providing more support for pregnant women.

Amy O’Donnell, a spokesperson for the Texas Alliance for Life, said the group had not finalized its legislative priorities yet, but said the group supported a law passed in 2017 requiring the Texas Department of Family and Protective Services to post information on its website about embryo donations to other people to promote the option.

A bill filed in 2019 aimed to ban state agencies from contracting with vendors affiliated with “destructive embryonic stem cell research,” human cloning and abortions, but the legislation didn’t gain traction.

Do you trust Ken Paxton, the guy who’s now suing to force doctors to let women die rather than perform an abortion that would save them, to take a reasoned and nuanced view of this? Do you trust the forced-birth advocates, who worry about the “destruction” of “excessive” embryos, to sit this one out? They could force you to pay for storage of your unused embryos for literally all of eternity, or to give them to strangers, if they get their minds to it and still have the legislative majorities. Do you trust the same legislature that passed SB8 to refuse to do their bidding if it comes to that?

If I were in this position, this is what I would do.

[Dr. Robert] Hunter runs a fertility clinic offering in vitro fertilization (IVF) in Louisville, Kentucky, where a blocked abortion law could soon put IVF in jeopardy, too. Now, many patients are scrambling to make decisions about their future. Kentucky is one of a handful of states that wants to use an abortion regulation to define life as beginning at fertilization, common language that is present in several other abortion bans that have gone into effect or will soon, including in UtahTexas and Louisiana.

The Kentucky law is currently blocked by courts, but that could change soon and, in November, voters will determine whether the state can even guarantee the right to an abortion.

Other states want to move further, giving embryos constitutional rights through what are called “personhood” bills, even though, scientifically, most will never become babies. Roe was the largest roadblock stopping these kinds of bills from becoming reality, but without it, patients in states including GeorgiaIowaOhioOklahomaSouth Carolina and Nebraska, where personhood laws have been proposed but have not yet passed, could face the same questions as Hunter’s patients in Kentucky.

Both kinds of laws could affect embryos created through IVF, causing spillover effects into other areas of reproductive care. Hunter’s patients likely now have a small window before those laws become more concrete realities in Kentucky, putting into question what they can do with their own embryos. Moving embryos to another state could buy patients some time. It may also afford them something even more valuable: a choice.

“IVF is just another side of the reproductive choice coin,” Hunter said. “You think about abortion as being a woman’s right to choose ‘no.’ IVF is their right to choose ‘yes.’”

And if it comes to it, this same legislature that will if unchecked start passing bills to criminalize everyone even tangentially involved with abortion will make it a crime to transport embryos across state lines. It’s just a matter of time. Get them to another state now while you still can. The Chron has more.

More on polling about abortion

Not a new poll, but a closer look at the June UT/Texas Politics Project poll, with a longer look back at over a decade’s worth of polling data.

Under current Texas law, abortion is prohibited even in cases of rape or incest. But polling shows Texans overwhelmingly support exceptions for rape and incest — only 13% and 11%, respectively, said pregnant people should not be able to obtain abortions in those cases.

Renée Cross, senior director of the Hobby School of Public Affairs at the University of Houston, is not involved with the Texas Politics Project but has also conducted polling on abortion policy.

“More helpful polling questions are those that try to get to the nuance, rather than do you support or oppose this one option,” she said.

To that end, the latest Texas Politics Project poll asked registered voters to consider how far along in pregnancy a person should be allowed to obtain an abortion when accounting for different circumstances, including when the person’s health was endangered, the pregnancy was a result of rape or the family could not afford any more children. This is the first time pollsters asked these questions of respondents.

While most Texans support exceptions for rape and incest, some still want to see limitations based on how far along a person is in their pregnancy. Nearly a quarter of respondents want abortions in cases of rape or incest limited to the first six weeks of pregnancy, a point at which many people do not know they are pregnant. Last September, 10 months before Roe v. Wade was overturned, Texas banned abortions after about six weeks of pregnancy, with no exception for cases of rape or incest.

Poll respondents supported more restrictions when asked about abortion in cases where the family is low income, or the pregnant person either doesn’t want to marry or is married and doesn’t want more children. Over 30% of voters said abortion should not be allowed in those cases.

These numbers are mostly consistent over time. The Texas Politics Project started polling registered voters about abortion availability in 2009. A historical look shows voters’ opinions on abortion have not changed much in over a decade.

One thing that has changed is people’s views on whether Texas’ existing laws about abortion should be made more strict, less strict, or left about the same. As Texas’ laws have gotten increasingly strict, the “abortion laws should be made less strict” group has grown from 26% in 2013 to 43% as of this June. The “more strict” group – one wonders what could possibly sate them, then one decides it probably isn’t worth asking that question – has gone from 38% to 23% in that same time span, while the “leave it as is” crowd has been basically static, from 20% to 23%.

It’s worth looking at the polling project’s post about their June numbers and scroll down to the section on abortion, where they asked questions about at what stage of a woman’s pregnancy would you support her being able to get an abortion under various circumstances. The choices for “when” are Never, up to 6 weeks, up to 12 weeks, up to 24 weeks, up to 36 weeks, and Any Time. The first four question are about circumstances where things are bad: The woman’s health in in danger, the woman was a victim of rape, the women was a victim of incest, and there is a strong chance of a serious birth defect. In all of those cases, support for allowing an abortion is high, though a significant portion of that support is often for just the first six weeks, while the support for “Never” ranges from 8 to 19 percent. If you group the “through 12 weeks” responses with the increasingly liberal ones, all of those positions get a majority, ranging from 53 to 62 percent. “Never” and “up to 6 weeks” add up to at most 35% for those items.

That’s the good news. The less good news is that for questions about discretionary abortions – the woman’s family is poor and they can’t afford a child, the woman is unmarried and doesn’t want to get married, the woman is married and doesn’t want another child – the Never group is the biggest at 34 to 36 percent, with the Any Time group at half that level. There’s still more support for the “up to 12 weeks” and more liberal groups than Never (41 to 45%), but Never plus “up to 6 weeks” is a slight plurality in all three cases.

In other words, this all only goes so far. That may yet change over time – this is June data we’re talking about, we’re still figuring things out in this post-Dobbs world – but we’re a long way from the state being a basically pro-choice place. It’s more pro-choice than what the Legislature allows – much more so in some cases – but there are definite limits.

One more thing:

Jim Henson, director of the project, said that in the years the poll has been conducted, people haven’t had many reasons to shift their viewpoints on abortion.

“Abortion has been a present enough issue that I think most people who have an attitude on abortion have thought on it enough to be pretty fixed on their attitude,” he said.

[Joshua Blank, research director for the project notes that these attitudes were all developed under Roe v. Wade. Now that it’s overturned, people will be forced to ask themselves new questions about where exactly they stand on the issue of abortion.

“That was all under the framework of Roe v. Wade, which allowed people to develop attitudes,” he said. “The fact that there were clear guardrails around what was and was not allowable in terms of restrictions helped enforce the rigidity of peoples’ attitudes because there was a backstop either way about what the courts would presumably accept.”

[…]

The Hobby School of Public Affairs also recently polled registered Texas voters on abortion availability and policy. [Renée Cross, senior director of the Hobby School] said the polls focus on proposed laws after the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.

“So rather than focusing primarily on ‘do you support abortion rights,’ we went a step further saying ‘this is the law of the land now, so now what do you support.’”

The Hobby School’s poll asked voters to assess potential policies such as whether abortion should be considered a homicide and whether it should be legal for Texans to take abortion-inducing pills obtained out of state. Around 60% of respondents oppose both classifying abortion as a homicide and making it a felony to take abortion-inducing pills from out of state. Around 30% support those classifications, while around 10% said they don’t know.

What that suggests to me is that for now, the best approach is probably to try to draw a line in the sand and say “no more restrictions”, talk a lot about how women are being endangered right now because they can’t get treated for miscarriages and ectopic pregnancies because of our “no exceptions” law, and emphasize that what Republicans want is to punish people for abortion. That’s where the vast majority of the support is. We’re going to have to do a lot more work to move things beyond that, but for the purposes of the November election, vowing to protect the rights of women that have been taken away by SCOTUS and the Legislature is the best bet.

Ted Cruz says Texas should repeal its anti-sodomy law

I feel obligated to note this.

U.S. Sen. Ted Cruz, one of the most socially conservative Texans serving in Congress, told The Dallas Morning News that Texas should repeal its now-dormant law that bans gay sex.

“Consenting adults should be able to do what they wish in their private sexual activity, and government has no business in their bedrooms,” Cruz’s spokesperson told the newspaper.

The Texas Legislature passed the law decades ago. It hasn’t been enforceable since 2003, when the U.S. Supreme Court decided in a landmark ruling that it violated the Constitution. There have been regular attempts by Democrats to repeal the law since, but they have repeatedly failed in the Legislature.

But questions over the future of that precedent have surfaced after the Supreme Court overturned Roe v. Wade in June. Both the 1973 abortion case and the gay sex case, known as Lawrence v. Texas, were decided based on the idea of a constitutional right to privacy.

The court’s overturning of Roe caused some to wonder whether other cases based on that privacy right would be next — and conservative Justice Clarence Thomas had suggested that the court reconsider the Lawrence precedent.

The court’s landmark ruling legalizing gay marriage was decided under similar reasoning. In recent weeks, Cruz has reiterated his opposition to that decision. He also frequently brought up his opposition to that ruling while campaigning for president that year in socially conservative states like Iowa and South Carolina.

Recently on his podcast, Cruz reiterated his belief that the decision was “clearly wrong” on the grounds that states, not the enacting of a federal standard, should govern gay marriage policy.

Even so, he said he didn’t think the court would overturn that ruling.

Whether SCOTUS would go along with Clarence Thomas’ fondest wish or not is unknown, but they will likely have ample opportunity in the near future to hear cases that have been brought by the same people that pushed to overturn Roe and are now pushing to overturn Windsor and Obergefell. I see no reason at all to trust in their intentions. But taking that into account and remembering that this is still Ted Cruz talking, I appreciate what he has said here. And given that he has said it, I see no reason why the Texas Legislature can’t do it. If even Ted Cruz thinks this is the right thing to do, what argument does some random Republican State Rep have?

Abortion penalties will increase on August 25

Sorry to be the bearer of bad news.

The U.S. Supreme Court has issued its official judgment in Dobbs v. Jackson Women’s Health Organization, clearing the way for Texas’ “trigger law” banning almost all abortions to go into effect Aug. 25.

The law will increase the criminal and civil penalties associated with abortion, but the procedure is already virtually outlawed in Texas under an old statute that was in effect before the high court decided Roe v. Wade in 1973.

The state’s two dozen abortion clinics stopped providing abortions almost immediately after the court overturned Roe v. Wade in late June, fearing criminal prosecution under those pre-Roe statutes, which make it a crime punishable by up to five years in prison to provide or “furnish the means” for an abortion.

Those statutes are separate from the trigger law, which the Legislature passed in 2021. That law, which is triggered by the overturning of Roe v. Wade, increases the penalties for performing an abortion up to life in prison. The trigger law also says that the attorney general “shall” bring a lawsuit to seek a civil penalty of no less than $100,000 per abortion performed.

Both the pre-Roe statute and the trigger law have only narrow exceptions to save the life of the pregnant patient.

While other states’ trigger laws went into effect immediately, Texas’ was written to go into effect 30 days after the Supreme Court issued its official judgment, after which no rehearings or appeals can be filed. That process usually takes about a month.

There’s been a lot of confusion over just when and how the law was going to change in Texas. I suspect that most people quite reasonably expected that abortion was essentially banned as soon as the Dobbs decision was made available, and for practical purposes that’s correct. The difference at this point is that all of the darkly muttered threats about the vengeance that is to be unleashed will turn into action on that date. Whatever constraints there may still be now will be gone. As bad as it is now, it’s going to get worse. I’m sorry to have to say that.

As for the remaining clinics themselves, they’re thinking about what comes next for them as well.

A month after the U.S. Supreme Court overturned Roe v. Wade, Texas’ two dozen abortion clinics are slowly coming to terms with a future where their work is virtually outlawed.

Some clinics have already announced that they are shutting down operations and moving to New Mexico and other states that are expected to protect abortion access. Others, including Planned Parenthood, say they will stay and continue to provide other sexual and reproductive health services.

But keeping the doors open will likely come at a high cost for these clinics — financially, politically and psychologically — as they absorb more patients with fewer options.

“It’s really hard to find words in the English language that honor what the experience has been like,” said Dr. Bhavik Kumar, medical director of primary and trans care at Planned Parenthood Gulf Coast in Houston. “It’s just devastation.”

Planned Parenthood will still be around, doing less than it has been able to do in the past. Whole Women’s Health is moving to New Mexico. Some others will stay, some others will leave. The devastation will increase. As I said before, that’s a feature and not a bug.

Uvalde school board asks for a special session on guns

They’re not going to get it, just like everyone else who has asked that Greg Abbott Do Something about them.

The Uvalde school board is formally urging Gov. Greg Abbott to call state lawmakers back to Austin so they can raise the legal age to buy assault rifles from 18 to 21, more than two months after a gunman used such a weapon to kill 19 elementary school students and two teachers days after he turned 18.

Uvalde Consolidated Independent School District trustees approved the largely symbolic resolution in a unanimous vote on the same night they voted to delay the start of the school year. Trustees moved the first day of school from Aug. 15 to Sept. 6 so that more security improvements can be made to campuses and district staffers can receive trauma-informed training.

Uvalde County commissioners have also asked Abbott, who in June asked the Texas Legislature to form special committees to make recommendations in the aftermath of the shooting, to call a special session to increase the legal age to buy an assault rifle. Democrats have made similar calls since the May 24 shooting at Uvalde’s Robb Elementary. The governor is the only Texas official with the power to call special legislative sessions.

In an emailed response to The Texas Tribune, a spokesperson from Abbott’s office said the governor “has taken immediate action to address all aspects” of the massacre in Uvalde.

“As Governor Abbott has said from day one, all options remain on the table as he continues working with state and local leaders to prevent future tragedies and deploy all available resources to support the Uvalde community as they heal,” the spokesperson said. “More announcements are expected in the coming days and weeks as the legislature deliberates proposed solutions.”

The vote on both items comes more than a week after a Texas House report detailed a series of “systemic failures” that allowed for the gunman to enter Robb Elementary in Uvalde and remain inside two adjoined classrooms for more than 73 minutes before law enforcement confronted him.

See here for some background. Two things to note here. One is that Abbott’s canned response every time someone asks him to Do Something to prevent teenagers from legally buying high-powered automatic weapons that they use to kill children is basically “I already did, so leave me alone”. He doesn’t want to take action, or to commit to something that might lead to action, so he deflects and hopes no one notices.

Two, the otherwise pretty good House report did not have any specific policy recommendations, such as raising the minimum age for purchasing the aforementioned weapons to 21. One assumes they got some sense of direction if not from Abbott himself then from the official Republican position, which is almost certainly farther to the right than the consensus of the individual members. I mean, I wouldn’t expect there to be anything like a majority within the GOP caucus for raising the age to 21, but I would expect there to be more than enough support when combined with Dems to pass such a bill in the House. I’d also expect that to have at least plurality support among self-identified Republicans, though likely not among Republican primary voters. Which in the end is the group that matters here. The obvious answer, if this is what one wants, is to elect enough Dems to make it happen, at least in the House. I’d still expect it to die in the Senate, but at least we’d have it all on record.

One more thing:

At a school board meeting last week, Uvalde residents called for district officials to fire district police Chief Pete Arredondo, who was among the first officers to arrive at the school the day of the shooting. School board members were scheduled to discuss that Saturday, but the school district postponed the meeting at the request of the police chief’s lawyer.

See here and here for the background. I was hoping to see an update on when this might happen, but not yet. I’ll keep watching.

Protecting those poor, discriminated against gun manufacturers

I have three things to say about this.

Texas lawmakers, frustrated with what they viewed as liberal political activism from some of the titans of American industry, banned banks last year from doing business with Texas municipalities unless they could certify to the state attorney general they don’t “discriminate” against the gun industry.

The Legislative Budget Board, which estimates the costs of proposed legislation, predicted no significant financial impact on the state or on local governments.

But in the first eight months since the law was enacted, local governments seeking to finance building projects through bonds — for instance school districts trying to build new football stadiums, cities looking to upgrade their airports — have already paid between $300 million and $500 million more in increased interest payments, according to a study from a University of Pennsylvania professor and a Federal Reserve economist based in Washington.

And the paper estimates the annual cost in higher interest payments will be around $445 million per year going forward, if nothing changes.

“There’s a cost to making this political statement. We can say that cost for Texas is between $300 million and $500 million dollars,” said Daniel Garrett, the professor.

The bill, SB19, was aimed at large banks that reconsidered their investment in the gun industry in the wake of the 2018 Stoneman Douglas High School shooting that left 17 dead. For instance, Bank of America refuses to fund companies that build military style rifles for civilian use. JP Morgan Chase won’t fund companies that sell guns to people under the age of 21. And Citigroup won’t fund those that don’t background-check all buyers.

Citigroup announced its updated policy on guns in a blog post one month after the Parkland massacre, with an executive vice president calling for “our grief to turn into action” and for the U.S. to “adopt common-sense measures that would help prevent firearms from getting into the wrong hands.”

The gun industry and its allies say the policies amounted to attempts from the banks to coerce customers to endorse their politics.

“Texas’ law has become probably the blueprint for other states considering similar legislation, and similar legislation has been introduced in congress,” said Mark Oliva, spokesman for the National Shooting Sports Foundation, which lobbied for SB19. Other states such as Georgia, Wyoming and Oklahoma have passed similar laws, Oliva said, and there are more to come.

[…]

The paper analyzed interest rates before and after five banks backed away from the state last fall — JP Morgan, Citi, Bank of America, Fidelity and Goldman Sachs — to estimate the effect of their departure. Those banks have traditionally financed about 15 percent of the total number of loans taken out by Texas governments, but the average size of those projects is about $120 million.

As a result, the effects are particularly concentrated among large school districts and cities that frequently borrow money to finance those larger projects, Garrett said.

“The way it would manifest is when they reach out to their banker to see how much it’s going to cost to, say, refinance the bonds they borrowed back in 2019, or something. Their banker is gonna say, Hey, I’m not in Texas anymore. And then when they call someone else, they’re gonna get a bid that looks really high,” Garrett said.

1. My first instinct was to be outraged at this story, but on reflection I see it as a sign of decline for the gun industry. They’ve entered a place similar to where the tobacco industry was in the 80s, which is to say where mainstream public opinion was turning decisively against them. And much like the tobacco industry at that time, the gun industry needs to be propped up by its hardcore political supporters, to try to slow down that decline. This is a long-term decline – it took 20-30 years for cigarettes to basically disappear from most people’s lives, and the gun industry has some powerful friends and deep pockets, with a lot of people still willing to buy their products – but I believe it’s there. When staid and status quo-oriented firms like those five banks would rather not do business with you, you’re on the way out whether you like it or not.

2. That said, in the short term things can get worse in various ways, and the price that cities and school districts will have to pay for this fit of pique is one of those ways. While rural and Republican areas will also feel some of this pain, the fact that it is cities and school districts on the sharp end of the stick here is very much a feature and not a bug as far as the law’s authors are concerned. They will feel no pressure to do anything about it.

3. Man, the list of laws we’re going to have to repeal or completely rewrite in order to undo the damage of 20+ years of Republican dominance in this state just keeps on getting longer. I hope someone better organized than I am is keeping track of this.

The Republicans just want to punish everyone for every abortion ever

They want to put you in jail.

More than 70 Republican state lawmakers have signed onto a friend-of-the-court brief siding with Attorney General Ken Paxton in arguing that a nearly century-old law imposing criminal penalties against those who help a patient obtain an abortion is enforceable now that the U.S. Supreme Court overturned Roe v. Wade.

A decision on whether that pre-Roe measure is enforceable is expected in the near future from the Texas Supreme Court, which has temporarily allowed the statute to be enforced civilly but not criminally.

The lawmakers, in a filing penned by state Rep. Briscoe Cain of Deer Park, argue that the Texas Legislature has “repeatedly and emphatically affirmed” the existence and continued enforceability of the old laws in recent legislation.

They note both the state’s anti-abortion trigger law, which will go into effect 30 days after the decision overturning Roe is certified, and its previous six-week abortion ban included language to that effect.

Lawyers for the plaintiffs — seven abortion clinic groups throughout Texas — point to legislative and judicial treatment of the old laws that they say proves they are no longer considered to be in effect, including a 2004 Fifth Circuit opinion that said the old laws were “repealed by implication.” The old statutes were also removed from copies of the state’s criminal and civil codes online.

In court records filed Monday, the Republican lawmakers argue that a state court can now make its own decision in the case, no matter how federal courts have ruled in the past.

They add that the Texas and U.S. Supreme Courts both “disfavor repeals by implication” and defers to it only when statutes can’t be “harmonized.” The lawmakers argue the laws could work in tandem.

See here for the background. This is nearly a legislative majority in itself. Imagine what they’ll do next spring if there are no checks on their power.

They also want to sue everyone in sight.

Texas anti-abortion conservatives are intensifying their efforts to shut down access for residents seeking abortions, with a near-daily drumbeat of threats and court filings aimed at donors, employers and others trying to help those patients.

They are part of a broad campaign by the anti-abortion rights movement, in the days since the U.S. Supreme Court reversed the constitutional right to abortion last month, to dry up avenues of assistance for Texans who have no access to abortion under several state laws and punish providers who have tried to legally continue offering services in a constantly changing legal landscape.

In their crosshairs are not just providers, but also nonprofit funding groups and the donors who support them; people who volunteer time or give money to abortion providers; employers who support pregnant workers in getting abortions; and the abortion clinics and employees themselves.

“Any person who was complicit in these illegal abortions—including [provider] Whole Woman’s Health employees, volunteers, and donors, and anyone who aided or abetted these illegal abortions in any manner, apart from the formerly pregnant woman upon whom the illegal abortion was performed — is equally liable under the Texas Heartbeat Act and equally guilty of murder,” reads a recent court filing by attorney Jonathan Mitchell, the legal architect of many of those efforts, including Senate Bill 8, a Texas law that bans abortions after fetal cardiac activity is detected and allows citizens to sue suspected violators.

[…]

When the trigger law takes effect, the state will have at least three separate laws on the books that collectively make abortion from the moment of conception illegal in Texas, in almost all cases, and hold violators liable either civilly or criminally.

But abortion opponents are ready to ask for more, threatening new laws that would extend Texas abortion laws beyond state lines, widen prosecutors’ powers to pursue abortion cases and further criminalize anyone who tries to help Texans get abortions.

“I think they’re emboldened, and I also think that frankly, the base that they’ve become dependent on is going to demand that they just keep going,” said Dallas attorney Elizabeth Myers, who represents Lilith Fund, an abortion-funding group and advocacy organization that is among those being targeted in civil court filings and by Texas legislators. “They will go until the court says no.”

On the civil side, courts in conservative Denton and Jack counties are likely to start hearing arguments in the coming weeks over whether to let Mitchell interview, under oath, two major funding groups about their involvement in potentially illegal procedures under both the 1925 law and SB 8. A similar request was filed by Mitchell in Howard County last week targeting abortion providers.

If that effort is successful, the information and documents that the abortion providers and supporters may be forced to turn over could help anti-abortion rights attorneys build lawsuits against them.

And although civil depositions can’t be legally used in criminal cases, they are public records and could be easily obtained by local prosecutors seeking an evidentiary road map for their own criminal cases.

See here for the background, and note that they got started several months before the Dobbs ruling. If you think they will continue to exclude the women who get abortions from their campaign of vengeance, you are giving way too much credit to a group of people who think that ten-year-old girls should be forced to carry a rapist’s baby and that hospitals should be held criminally liable for performing live-saving care. I would argue this isn’t their highest priority going forward, it’s their only priority. And sooner or later, they’ll come after all of us. What are we going to do about that?

More on abortion travel benefits and the legislative threats to them

Taking a broader look at what’s out there right now, it’s understandable that some companies are just hoping to not become targets.

Republican Texas legislators who sent a threatening letter to Sidley Austin last week over the law firm’s policy to pay for out-of-state abortion travel also have other Texas employers offering that benefit in their sights.

The far-right Texas Freedom Caucus’ letter to Sidley threatened the law firm with civil penalties, felony charges and disbarment for its policy. It also said lawmakers plan to introduce legislation prohibiting “any employer in Texas from paying for elective abortions or reimbursing abortion-related expenses—regardless of where the abortion occurs.”

The ride-sharing service Lyft, which has been an outspoken advocate of abortion rights, already has been a target of Texas anti-abortion lawmakers’ fury. In early May, weeks before the Supreme Court overturned Roe v. Wade, lawmakers sent a letter to CEO Logan Green chastising him for announcing that the company would pay travel costs for women who leave Texas or Oklahoma for abortions.

“Your decision to divert corporate resources to this end is unacceptable and will not be tolerated. Your responsibility as a CEO is to maximize return to the shareholders, not to divert shareholder resources toward ideological causes in an effort placate the woke liberals in your C-suite,” said the letter, which was signed by 14 lawmakers, six of them Freedom Caucus members.

Legal experts say that while Texas likely would face hurdles building a legal case restricting access to health care outside state boundaries, they say the hard-line rhetoric is giving some companies pause about adopting abortion-related benefits or publicizing them.

Michelle Browning Coughlin, of counsel at the Kentucky office of ND Galli Law, said she considers legislators’ threats “empty.” Even so, she said, as in-house counsel, “You can’t just be cavalier about advising your company to do something that could be dancing them into potentially breaking the law.”

Texas employers that previously issued promises to defend employee access to abortion are laying low. Lyft, Apple, Bumble, Comcast NBCUniversal, Dick’s Sporting Goods, HP Enterprises, Kroger, Match Group, Nike, Uber and Warner Bros. Discovery did not respond to requests for comment.

One general counsel who declined an interview said there was little benefit to standing in the spotlight on the divisive topic. “I can understand why people don’t want to go on record on this particular issue.”

Rob Chesnut, a former Airbnb general counsel and chief ethics officer, agreed.

“If you poke your head up on an issue like this, you risk becoming an enforcement target,” he said.

[…]

Myers said the Freedom Caucus and other abortion opponents in state government “have been targeting folks who help people access abortion in Texas for years, and what they’re doing now is moving on to corporate entities rather than just focusing on nonprofit organizations who’ve been terrorized and harassed.”

Browning Coughlin said Texas authorities could face challenges building a case against companies with travel policies, in part because the evidence that an employee actually received an out-of-state abortion would be difficult to obtain.

Even so, Travis Gemoets, a Los Angeles-based partner with Jeffer Mangels Butler & Mitchell, said the fact that legislators’ threats touch on unsettled areas of the law might be enough to make companies nervous.

“To prohibit this interstate activity seems to be pushing the envelope for any state institution,” he said. “But they’re doing it, and they’re certainly going to threaten it until they’re told that they can’t do it. … We’re seeing the very, very beginning of these issues, but it’s going to take years for courts to weigh in.”

The uncertainty will create a chilling effort, he said.

“If my client received a letter like this, I would say, ‘Look, I can’t tell you you’re free and clear to do what you want. We just don’t know the landscape.’”

Walking back abortion benefits after receiving a threat, however, could result in even more threats, Gemoets said. “If Texas is finding that it’s getting headway with this approach, you’re going to see other jurisdictions, other states replicate that approach.”

We’ve discussed this before, even before the Dobbs ruling came down. The bullies and lowlifes in the deep red districts will never go away, but if Republicans underperform in the November election it will have an overall effect of cooling off the ardor for this kind of viciousness, as we saw in the 2019 legislative session. It’s a simple matter of rewards and incentives – if you engage in wild behavior and win you can keep on going nuts, but if you do so and lose you need to rein it in. I guarantee you, a lot of these affected companies are waiting to see how the wind is blowing, at least as far as speaking up is concerned. A profile in courage it ain’t, but it’s the reality we’re dealing with.

On a more specific matter, a bit of new information.

In the wake of the Supreme Court’s demolition of reproductive freedom precedent, a number of employers (including a bunch of law firms) have decided to cover the travel costs of employees, should they seek an abortion or other banned procedures in jurisdictions where they’re no longer legal. But only one — Biglaw firm Sidley Austin — received a letter from the ironically named Texas Freedom Caucus threatening a number of repercussions over the policy.

Now, as reported by Bloomberg Law, the White House has weighed in on the threatening letter, with assistant press secretary Alexandra Lamanna saying, “These punitive actions and extreme proposals from elected Republicans are exactly what the President has been warning about.”

[…]

Although some media reports have posited that the letter from the Texas Freedom Caucus was a warning to all Texas firms, it is not, in fact addressed to all Texas firms. Just Sidley. And that’s despite numerous Biglaw firms with offices in Texas coming out and saying they’d also pay for travel costs if an employee wants abortion care. Indeed, according to the Caucus’s own website, the only threatening letter they’ve sent out — to any employer at all — has been to Sidley.

Inspired by an email from a tipster, this fact got me thinking about why Sidley was targeted. The most prestigious law firm in Texas, Vinson & Elkins, has also pledged to pay for employees’ travel expenses, but curiously, haven’t been threaten like Sidley. Kirkland & Ellis is the law firm that makes the most money and will also cover travel costs, and… no letter. Could it be, and this is speculation, that of the prestigious law firms in Texas, only a few have women leading them? Hence that letter, addressed to Sidley’s Yvette Ostolaza.

Maybe Dick’s Sporting Goods’ CEO Lauren Hobart should expect a similar letter soon.

And it turns out, the plot is still thickening.

As reported by Reuters, Cody Vasut is both of counsel at the Biglaw firm of BakerHostetler and also a Texas state representative… as well as a member of the Freedom Caucus. Now my curiosity as to why Sidley is the only employer targeted by the Freedom Caucus is REALLY piqued.

UPDATE: As noted by an eagle-eyed tipster, Vasut no longer appears on BakerHostetler’s website.

BakerHostetler Chair Paul Schmidt had this to say about Vasut’s caucus targeting a rival firm, “His affiliation with the Texas Freedom Caucus is in a personal capacity and solely related to his legislative role.”

BakerHostetler has not responded to requests to find out if the firm will, like many of its peers, offer similar coverage of travel costs. Law students, only a few weeks away from early interview week (and potential laterals), take note.

That Reuters story linked above notes that “Eleven women attorneys with BakerHostetler, including 10 partners, were signatories to an open letter first published in The American Lawyer last month decrying” the Dobbs ruling. We’re firmly in speculative territory here, but it is an interesting question: Why was this one firm, out of however many in Texas, seemingly singled out? Maybe the “Freedom Caucus” was planning to send a bunch of other letters as well but hadn’t gotten to them yet for some reason. If it all ends up with a jerk like Cody Vasut getting some unfriendly scrutiny of his own, that’s fine by me. I’ll keep an eye on this.

House committee report on the Uvalde massacre

The special State House committee that was tasked with investigating the response to the Uvalde mass shooting released its report yesterday. The report identified numerous failures, in law enforcement and in the school and in other systems, though it’s clear to me that they studiously avoided mentioning one particular type of failure. I’ll get there in a minute. First, the law enforcement failures.

The 18-year-old who massacred 19 students and two teachers in Uvalde on May 24 had no experience with firearms before his rampage began. He targeted an elementary school with an active shooter policy that had been deemed adequate but also a long history of doors propped open.

No one was able to stop the gunman from carrying out the deadliest school shooting in Texas history, in part because of “systemic failures and egregious poor decision making” by nearly everyone involved who was in a position of power, a new investigation into the shooting has found.

On Sunday, a Texas House committee is releasing the most exhaustive account yet of the shooter, his planning, his attack and the fumbling response he provoked.

The 77-page report, reviewed by The Texas Tribune, provides a damning portrayal of a family unable to recognize warning signs, a school district that had strayed from strict adherence to its safety plan and a police response that disregarded its own active-shooter training.

It explains how the gunman, who investigators believe had never fired a gun before May 24, was able to stockpile military-style rifles, accessories and ammunition without arousing suspicion from authorities, enter a supposedly secure school unimpeded and indiscriminately kill children and adults.

In total, 376 law enforcement officers — a force larger than the garrison that defended the Alamo — descended upon the school in a chaotic, uncoordinated scene that lasted for more than an hour. The group was devoid of clear leadership, basic communications and sufficient urgency to take down the gunman, the report says.

Notably, the investigation is the first so far to criticize the inaction of state and federal law enforcement, while other reports and public accounts by officials have placed the blame squarely on Uvalde school police Chief Pete Arredondo, for his role as incident commander, and other local police who were among the first to arrive.

The report also reveals for the first time that the overwhelming majority of responders were federal and state law enforcement: 149 were U.S. Border Patrol, and 91 were state police — whose responsibilities include responding to “mass attacks in public places.” There were 25 Uvalde police officers and 16 sheriff’s deputies. Arredondo’s school police force accounted for five of the officers on the scene. The rest of the force was made up of neighboring county law enforcement, U.S. Marshals, and federal Drug Enforcement Agency officers.

The investigators said that in the absence of a strong incident commander, another officer could have — and should have — stepped up to the task.

“These local officials were not the only ones expected to supply the leadership needed during this tragedy,” the report said. “Hundreds of responders from numerous law enforcement agencies — many of whom were better trained and better equipped than the school district police — quickly arrived on the scene.”

The other responders “could have helped to address the unfolding chaos.”

The three committee members — Rep. Dustin Burrows, R-Lubbock; Rep. Joe Moody, D-El Paso and former state Supreme Court Justice Eva Guzman — said they sought to create a comprehensive account the Legislature can use to craft policies aimed at preventing future massacres. The trio also sought to present an accurate narrative to the public, in contrast to several conflicting and retracted accounts provided by other officials, including the governor and state police, in the seven weeks since the tragedy that have undermined residents’ trust in the ongoing investigations.

They dedicated the document to the 21 people killed in the shooting, and first unveiled their findings during a private meeting with Uvalde residents on Sunday.

“The Committee issues this interim report now, believing the victims, their families, and the entire Uvalde community have already waited too long for answers and transparency,” the report reads.

The report is not yet public, or at least it wasn’t when I drafted this post on Sunday. The chain-of-command failure seems like one for which there ought to be an objective solution, which could be mandated by state law or recommended via a state or federal agency. I mean, we all know there are going to be more of these mass shootings, so the least we can do – the very least we the public can reasonably expect – is that law enforcement agencies have their act together and know who’s in charge when this happens. It makes sense to me that the locals start out in charge, but there ought to be some mechanism and process for either handing that off to another agency or having it taken by them if the situation warrants. I’m no expert and don’t know what the best answer may be, but any idiot can see that what went down in Uvalde was absolutely unacceptable and must not be allowed to happen again.

The report also looked at the shooter, the ways he was failed as a child by those around him, and the warning signs he was giving off before the murders.

A year before the Uvalde school massacre, the gunman had already earned the nickname “school shooter” — a running joke among those he played online games with. He had also started wearing all black and making over-the-top threats, especially toward women, who he terrorized with graphic descriptions of violence and rape.

[…]

Salvador Ramos — who the committee is only referring to as “the attacker” so as to deny him the notoriety and fame he desired — also shot and wounded his grandmother, Celia Gonzales, before storming the school.

He was born in Fargo, North Dakota but moved to Uvalde as a child with his sister and mother, who struggled with a long history of drug use. A former girlfriend interviewed by the FBI said she believed the shooter had been sexually assaulted at an early age by one of the mother’s boyfriends but that she didn’t believe him.

Relatives described him as someone shy and quiet who was reluctant to interact with others because he had a speech impediment. When he started school, his pre-K teacher described him as a “wonderful student,” always ready to learn and with a positive attitude.

Then, something changed. He started falling behind in school but never received special education services, despite being identified as “at-risk” and having someone request speech therapy for him, according to the report, citing school records.

Family and friends told the committee he was bullied throughout the fourth grade over his stutter, short haircut and clothing. He often wore the same clothing day after day. One time, a girl tied his shoelaces together causing him to fall on his face, a cousin said.

Beginning in 2018, he was recording more than 100 absences a year, along with failing grades. But the report authors said it was unclear whether a school resource officer ever visited his home. By 2021, when he was 17 years old, he had only completed ninth grade, the report’s authors wrote.

When students started to return to school following the pandemic, he dropped out. Instead of trying to fit in, as he had done in the past, he grew more isolated and retreated to the online world. Uvalde High School officials involuntarily withdrew him on October 28, citing “poor academic performance and lack of attendance.”

[…]

Online, the report authors said, he started to show an interest in gore and violent sex, sometimes sharing videos and images of suicides and beheadings. He became enraged and threatened others, especially female players, when he lost games.

Privately, he wrote about his challenges connecting with others or feeling empathy for them, saying he was “not human.” His search history, the authors of the report wrote, suggest he was wondering whether he was a sociopath. His internet searches led to him receiving an email about obtaining psychological treatment for the condition.

Attacking women became a pattern. He was also fired from his job at a Whataburger after a month for threatening a female coworker. And later he was let go of his job at Wendy’s.

Despite losing his jobs, living at home allowed him to save money. By the end of 2021, when clues of his plans first surfaced, he ordered rifle slings, a red dot sight and shin guards, as well as a body armor carrier he wore the day of the Robb Elementary massacre. But because he was still 17 at the time, he wasn’t legally allowed to buy the weapons and at least two people he asked refused.

He started becoming fascinated with school shootings and increasingly seeking notoriety and fame on social media, the report said.

[…]

He confided in an older cousin who was also staying with their grandmother that he didn’t want to live anymore. But the cousin told authorities she thought she’d gotten through to him after a lengthy “heart-to-heart.”

Instead, Ramos began to buy more firearm accessories beginning in February, including 60 30-round magazines. As soon as he turned 18, on May 16, he started buying guns and ammunition. In the end he bought two AR-15-style rifles and thousands of rounds. In total, he spent more than $6,000, the committee found.

He had no criminal history nor had he ever been arrested. There was nothing in his background that kept him from owning the weapons. And while multiple gun sales within a short period of time are reported to the ATF, the committee report authors point out that the law only requires purchase of handguns to be reported to the local sheriff.

“Here, the information about the attacker’s gun purchases remained in federal hands,” they wrote.

Online, the shooter started to reference a timeline, foreshadowing his plans.

Emphasis mine. To me, the single biggest failure is that this guy was able to buy all this stuff, without which there could have been no massacre. Why should any minor be able to buy the paraphernalia he bought, and why should anyone at any age be able to buy AR-15s with thousands of rounds of ammunition? I’m not making a constitutional argument here, I’m making a moral one. I say we’d be living in a healthier and safer society right now if no one outside the military had access to such weaponry.

I don’t expect such a statement to be in a report like this, but the much milder suggestion that maybe limiting the sale of most guns and gun accessories to people over the age of 21 is an idea worth exploring would have been appropriate. The longer we refuse to take any kind of proactive steps to reduce mass shootings, the more extreme and extensive the reactive steps we will be forced to take to try to mitigate them. We can fixate all we want on the laxness of door-locking at Robb Elementary, or we can try to make it harder for people to stockpile weapons in sufficient quantities as to intimidate police departments.

Anyway. A brief summary of the highlights from the report is here. The House committee can write a report and make recommendations, but only the Governor can call a special session to pass laws that those recommendations suggest. Don’t expect much of a response from Greg Abbott et al.

UPDATE: Here’s one response: A Uvalde police lieutenant who led the department the day it was part of the fiercely criticized response to the worst school shooting in Texas history has been placed on administrative leave, according to Uvalde Mayor Don McLaughlin. We’ll see if DPS or any other agency sees similar fallout.

Here come the threats to businesses

The forced birth fanatics are just getting started. And it’s already ugly.

A group of Texas state House lawmakers called the Texas Freedom Caucus sent a letter to a law firm in Dallas last week threatening “consequences” over the firm’s decision to reimburse employees for the costs of out-of-state travel to obtain an abortion.

The lawmakers’ missive, sent and posted on its website on July 7, accused the firm, Sidley Austin LLP, of being “complicit in illegal abortions” in Texas that were allegedly performed before and after the Supreme Court issued its Dobbs ruling that struck down Roe v. Wade.

“It has come to our attention that Sidley Austin has decided to reimburse the travel costs of employees who leave Texas to murder their unborn children,” state Rep. Mayes Middleton (R), the chair of the Texas Freedom Caucus, wrote in the email to Sidley Austin, which is based in Chicago but has an office in Dallas. “We are writing to inform you of the consequences that you and your colleagues will face for these actions.”

Middleton claimed that the law firm was “exposing itself and each of its partners to felony criminal prosecution and disbarment,” citing Texas’ anti-abortion law from 1925 that the state can now enforce after the Supreme Court struck down Roe last month.

“We will also be introducing legislation next session that will impose additional civil and criminal sanctions on law firms that pay for abortions or abortion travel,” Middleton warned.

The new legislation, according to the letter, will criminalize any Texas company’s reimbursement of “elective abortions” or “abortion-related expenses — regardless of where the abortion occurs, and regardless of the law in the jurisdiction where the abortion occurs.”

It will also require the State Bar of Texas to disbar any lawyer who violates the states’ ban on abortion, Middleton warned.

The email included a CC to Texas Attorney General Ken Paxton (R), who has sworn to enforce the state’s abortion restrictions in the wake of the Supreme Court’s strikedown of Roe.

We’ve known this was coming – these guys are not subtle – and we’re already seeing some of it with other big national companies. As it happens, Monday’s CityCast Houston podcast featured an interview with Jane Robinson, 2020 Democratic candidate for Chief Justice of the 14th Court of Appeals and partner with litigation firm AZA, which is offering similar benefits to its employees. They will for sure be in the crosshairs as well. Hopefully, they’ll be good enough at litigating to hold back the mob, but there’s only so much they’ll be able to do if the laws get changed sufficiently. This is among the things we’re voting on this November.

The continued Republican threat to voting

They cannot be satisfied.

Not satisfied with the new voting restrictions put in place less than a year ago, the Texas Republican Party is plowing ahead with yet new measures that would reduce the number of early voting days and end the practice of allowing any senior to vote by mail without an excuse.

At the same time, party leaders are threatening GOP state lawmakers who control the Texas Legislature with increased sanctions if they don’t support the platform, including potentially spending tens of thousands of dollars directly to oppose them in future primaries.

“We made a good step the last time, but we are not there yet,” State Sen. Bob Hall, a Republican from Edgewood, said about last year’s election reforms packages that reduced early voting hours in places like Harris County and put new restrictions on mail-in voting.

The push to further restrict early voting and mail-in ballots is rooted in former President Donald Trump’s continued claim without evidence that the 2020 election was stolen from him largely because of mail-in balloting. At the same convention where the state GOP adopted the new legislative priorities, more than 8,000 delegates also approved a resolution rejecting the “certified results of the 2020 Presidential election” and declaring “that acting President Joseph Robinette Biden Jr. was not legitimately elected by the people of the United States.”

“Texas Republicans rightly have no faith in the 2020 election results and we don’t care how many times the elites tell us we have to,” said Republican Party of Texas Chairman Matt Rinaldi, who was elected the leader of the party with no opposition.

What’s more, the Republican Party of Texas membership voted overwhelmingly at its statewide convention in June to make more election reforms its No. 1 priority for the next legislative session that begins in January. That would include increasing penalties for those who violate election laws even inadvertently, reducing early voting days and restricting mail-in balloting to only the military, the disabled and people who will be out of the county during the entirety of early voting.

Texas has allowed voters 65 and older to vote absentee without needing an excuse since 1975. If the GOP succeeds, that would end. More than 1 million Texans used vote-by-mail during the 2020 presidential election and more than 850,000 of those ballots came from people 65 and older, according to the Texas Division of Elections.

“There’s no reason, just because you’ve turned 65, that you can’t show up to vote,” Hall said in promoting the changes during the June GOP Convention in Houston.

[…]

Texas was a pioneer of in-person early voting. It created a 20-day window of early voting in the late 1980s and expanded it dramatically in the early 1990s to include more locations like shopping malls and grocery stores. Currently, Texas has two weeks of early voting before elections, though in 2020 Gov. Greg Abbott expanded early voting for an additional week to allow more people concerned about COVID-19 to vote before Election Day.

If the state cut early voting to just one week, as Hall has proposed, it would affect up to 6.5 million Texans — that’s how many voted in the first two weeks in 2020.

Look, there’s no point in deploying things like “logic” to point out that they seem to have no problems with the elections that they won, or that doing this would hurt their voters, too. It doesn’t need to make sense. It also doesn’t matter whether the “regular” Republicans support this madness or not. Once it has a foothold, the momentum only goes in one direction. Either we win enough power to hold them off, or we are left with nothing but the hope that the likes of Bryan Hughes is unwilling to go that far.

Also of interest:

The Harris County Attorney’s office on Thursday said it is looking into allegations a grass-roots group knocked on doors in Sunnyside and attempted to get residents to sign affidavits verifying the identities of registered voters living at their addresses.

The county attorney’s probe is based on a complaint from at least one Sunnyside resident who said two men came to her home and asked questions they said were to confirm the identities of registered voters who live at that address. The men gave her an official-looking affidavit form and asked her to sign it attesting to the residents at the address “under penalty of perjury.”

“We are investigating this issue and exploring legal options to protect residents and prevent this from happening again,” the County Attorney’s office said in a statement, adding it is working closely with the Harris County Elections Administrator’s office to fully understand what happened.

In a Wednesday evening news release, the elections office warned residents against “scammers” it said pretended to be from the county elections and voter registration offices and attempted to collect sensitive personal information from voters.

The County Attorney’s office, however, said it had no information that anyone had attempted to misrepresent themselves as public employees, which would be illegal.

The two men, according to doorbell camera video footage recorded by a Sunnyside resident, wore badges identifying themselves as members of Texas Election Network, a conservative grass-roots organization formed in 2021.

[…]

In video footage recorded Sunday and reviewed by the Houston Chronicle Thursday, a man carrying the clipboard explains to the resident: “What they told us to do is get a yes or no to confirm whether everybody is here. If not, we’ll take the ones off that are not, and then they update their records.”

The Texas Election Network website — which has minimal information about the organization and does not disclose its leadership — lists five objectives, including clean voter rolls and fraud-free absentee ballots.

In its release, the county elections office said it does request the information being asked on the form used by men and added that voters are not required to sign them.

“In the event that the Harris County Elections Office ever needs to contact you directly, our staff will have county ID badges to prove their identity, and/or paperwork with the logo or official seal of the office included,” the release states.

James Slattery, senior staff attorney with the Texas Civil Rights Project, said for the average voter, the organization’s name, badge and paperwork could convey a sense of an official visit by the government without explicitly doing so.

“I’m sure they’ll say they’re just a bland nonprofit, but to a voter who does not have a law degree, who does not have a background in law enforcement, you are a lot more likely to believe that this is some kind of quasi-official visit,” Slattery said.

“This is one of the precise situations I have been most worried about this election — people in shadowy volunteer groups who suggest in one way or another that they are acting under official authority questioning the eligibility of voters directly by knocking on their doors,” Slattery said.

I’m sure this group is totally on the up-and-up and will spend an equivalent amount of time canvassing in Baytown and Kingwood and the Villages.

DAs are not going to be able to avoid enforcing anti-abortion laws

I appreciate the sentiment, but that’s not how it works.

Even before the U.S. Supreme Court overturned Roe v. Wade on Friday, local prosecutors in several of the largest Texas counties vowed not to file criminal charges in abortion-related cases, seemingly offering hope for those seeking a way around the state’s impending abortion ban.

But those counties are unlikely to serve as abortion safe havens in post-Roe Texas, legal experts and abortion rights advocates say, largely because clinics still face the threat of legal retribution even in counties with sympathetic district attorneys. And the penalty for those who continue offering the procedure is steep — up to life in prison and at least $100,000 in fines under Texas’ so-called trigger law, which will soon outlaw nearly all abortions, starting at fertilization.

While Attorney General Ken Paxton cannot unilaterally prosecute criminal cases unless authorized by a local prosecutor, he is free to do so for civil matters anywhere in Texas. That means district attorneys may shield clinics and physicians from the trigger law’s criminal penalty of a first- or second-degree felony, but Paxton could still target them for six-figure civil fines, said Sandra Guerra Thompson, a law professor at the University of Houston.

She also noted that abortion providers could be found criminally liable if an incumbent district attorney reconsiders or is replaced by a successor who wants to pursue abortion-related charges.

The trigger law, which takes effect 30 days after a Supreme Court judgment overturning Roe v. Wade, makes no exceptions for pregnancies resulting from rape or incest, nor for severe fetal abnormalities. It carries narrow exemptions for abortion patients placed at risk of death or “substantial impairment of a major bodily function.”

Still, some prosecutors could begin pursuing criminal charges immediately based on Texas statutes that pre-dated Roe but were never repealed by the Legislature, Paxton said Friday. Those laws prohibit all abortions except “for the purpose of saving the life of the mother.”

In any case, it’s unlikely that abortion providers will take the risk. They are already bound by the state’s six-week abortion ban, which allows people anywhere in the country to sue providers or those who help someone access the procedure in Texas after fetal cardiac activity is detected. Successful litigants win damages of at least $10,000 under the law.

We’ve discussed this before. There are things that cities and individuals can do to hinder law enforcement or prosecutorial efforts to enforce anti-abortion laws, but one way or another they are going to be enforced, very likely via increasingly intrusive and draconian means. If somehow local DAs refuse to pursue cases, the Lege will change the law to go around them, either to the Attorney General or to neighboring counties – Briscoe Cain is already planning to file bills to that effect. We can’t succeed at this level. The only way to fight it is to have power at the state level, and that’s going to mean winning statewide races and/or winning enough seats in the Lege to take a majority in the House. Even that is at best a defensive position – we are not taking over the Senate, not even in the most wildly optimistic scenario I can imagine – but it’s the best we can do, and it would definitely reduce the harm that is otherwise coming.

One more thing:

Harris County District Attorney Kim Ogg also slammed the Supreme Court decision, arguing that the “criminalization of reproductive health will cause great harm to women in America.” While she added that “prosecutors and police have no role in matters between doctors and patients,” she stopped short of a blanket vow to not prosecute alleged violations of state abortion laws.

“As in every case, we will evaluate the facts and make decisions on a case-by-case basis,” said Ogg, a Democrat.

I’m including this because as far as I can tell it’s the first time Ogg has spoken publicly about the coming anti-abortion enforcement wave. I seriously doubt that Kim Ogg will want to pursue any cases that are filed with her office, but I also doubt that she’ll just ignore them. Maybe she’ll take a broad “prosecutorial discretion” stance, but again, if she does and if nothing changes with the November elections, that discretion will be taken away from her. There just isn’t much she or anyone in her position can do about this. We need to be clear about that.

A big part of the Cornyn gun bill will do nothing in Texas

Just a reminder.

The bipartisan gun bill that is on a fast track through Congress and backed by U.S. Sen. John Cornyn includes new state grants to incentivize red flag laws, which allow judges to temporarily seize firearms from people who are deemed dangerous.

That means it’ll be up to states as to whether they want to take advantage of one of the key provisions of the landmark gun legislation. But despite last month’s Uvalde school shooting being the inspiration for the bill, Texas is unlikely to get on board.

Red flag laws likely remain a nonstarter among Republican leaders in Texas, where Gov. Greg Abbott already faced a conservative backlash after he asked the Legislature to consider them four years ago.

Lt. Gov. Dan Patrick, who oversees the Senate and wields tremendous sway over what legislation is considered, indicated Wednesday he still opposes such an effort.

“After the Santa Fe shooting, we had the same move to do this and we did not support it,” he said in a radio interview. “I did not support [that], the Senate did not support that.”

Patrick said that if he were in the U.S. Senate, he would have been among the 36 Republicans — including Texas’ junior senator Ted Cruz — who sided against the bipartisan gun bill in an initial vote Tuesday. Patrick added that he was “very, very concerned about that and where that goes.”

See here for some background, in which the subject of red states and red flag laws was thoroughly discussed. I don’t really have anything to add to that, so go listen to this week’s episode of the Josh Marshall podcast, in which they discuss the politics of this bill and what might happen next. Our job here remains to elect leaders that will not be obstacles to sensible and meaningful gun reform.

One more thing:

Red flag laws are nonetheless popular with Texas voters. A poll released Tuesday found that 75% of the state’s voters support laws that “give family members or law enforcement a way to ask a judge to issue an order temporarily removing guns from someone who poses a violent threat to themselves or others.” The survey was conducted by Third Way, a centrist think tank, and GS Strategy Group, a GOP polling firm.

The poll doesn’t break any of their issues questions down by party (or any other subgroup, like gender or race or age), so it’s not very useful. That said, in addition to the number cited above, the poll had 89% support for “Requiring a background check before every gun purchase, including at gun shows and for online sales”, 80% support for “Increasing the minimum age to purchase a semi-automatic weapon from 18 to 21 years old”, 80% support for “Allowing law enforcement to access sealed juvenile records to ensure that young adults with a history of violent criminal behavior are restricted from purchasing firearms”, and 68% support for ” Funding research around the effectiveness of gun safety policies”. You’re not going to get those kind of numbers without a fair amount of Republican support. Getting them to vote for candidates that also support those positions, that’s a different matter. As we well know. The Chron has more.

We’re still not going to get a special session for gun safety legislation

But I still appreciate the effort. Someone has to do it.

With Texas schools restarting classes in less than two months, Texas Senate Democrats renewed calls Monday for Gov. Greg Abbott to bring lawmakers back to Austin this summer to enact legislation that might prevent another mass shooting like the one at a Uvalde elementary school that killed 19 students and two teachers last month.

The senators said if lawmakers reconvene for a special session, they would support proposals like raising the age to legally own an assault weapon from 18 to 21, creating red flag laws for gun purchases, instituting a 72-hour “cooling off” period and regulating the private sale of firearms.

But first there has to be a debate, and a vote, to let Texans know where their elected officials stand on how to respond to the Uvalde shooting, said state Sen. John Whitmire, a Houston Democrat who chairs the Senate Criminal Justice Committee and was unsuccessful in passing his red flag legislation last session.

“The people are urging us to take action, but first we have to let them know we’re listening to them,” he said. “We’ve heard the public, we want to represent them, but we have to have a session to do that.”

The Senators have been calling for a special session for many weeks following the Uvalde massacre. They are now joined by multiple Mayors.

San Antonio Mayor Ron Nirenberg is part of a bipartisan group of 13 Texas mayors who sent a letter demanding Texas Gov. Greg Abbott call a special legislative session to address gun violence in the wake of the Uvalde school shooting.

Abbott, a Republican up for reelection in the fall, has asked state lawmakers to organize committees to look into school safety following the massacre, which killed 19 students and two teachers. However, he’s balked at calling a special session and has avoided discussion of new firearms laws — something that would anger the powerful gun lobby.

The letter calls on Abbott to enact reforms the mayors say are backed by the majority of Texans and could prevent future mass shootings.

“We represent a continuum of political ideology and have come together because we know most Texans have a strong desire for common sense reform to protect our children,” they said. “As mayors, we believe the legislature and executive leaders can come together to find the right solutions for Texas.”

The letter also asks Abbott to place the following reforms on the legislative agenda.

  • Requiring universal background checks for gun purchases.
  • Increasing the age to purchase assault weapons in Texas to 21.
  • Passing “red flag” laws to identify threats before shootings.
  • Boosting mental health support funding.
  • Training and properly equipping school safety officers.

Texas isn’t among the 19 U.S. states to enact “red flag” laws, which prevent people at risk of harming themselves or others from purchasing firearms.

In addition to Nirenberg, the letter is signed by Austin Mayor Steve Adler, Dallas Mayor Eric Johnson and Fort Worth Mayor Mattie Parker, among others.

As always, I appreciate the effort. And also as always, I fully expect Greg Abbott to cover his ears and start singing “Baby Shark” or whatever it is he does to self-soothe these days, because it ain’t gonna happen. You probably didn’t pay much attention to the fascistic shitshow known as the Texas Republican Convention from last week, but Greg Abbott did. That’s who he’s listening to (and deathly afraid of), not a bunch of Democrats and mayors. The Chron and the Dallas Observer have more.

DPS pins the blame on Arredondo

Look out for that bus!

Department of Public Safety Director Steve McCraw told a state Senate committee Tuesday that the law enforcement response to the Uvalde school shooting was an “abject failure” and police could have stopped the shooter at Robb Elementary School three minutes after arriving were it not for the indecisiveness of the on-scene commander, who placed the lives of officers before those of children.

McCraw said the inexplicable conduct by Uvalde school district police Chief Pete Arredondo was antithetical to two decades of police training since the Columbine High School massacre, which dictates that officers confront active shooters as quickly as possible.

“The officers had weapons; the children had none,” McCraw said. “The officers had body armor; the children had none. The officers had training; the subject had none. One hour, 14 minutes and 8 seconds. That’s how long children waited, and the teachers waited, in Room 111 to be rescued.”

The revelations detailed by McCraw completed a remarkable shift in the police response narrative state officials have given since the May 24 shooting. Twenty-seven days after Gov. Greg Abbott said the shooting “could have been worse” but for officers who showed “amazing courage by running toward gunfire,” his state police director described stunning police incompetence that bordered on cowardice.

[…]

McCraw said though the state police are a far larger agency than the six-person Uvalde Consolidated Independent School District department, Arredondo was the rightful incident commander because he was the most senior first responder who had immediate jurisdiction over the district’s campuses. He said Arredondo could have transferred command to another agency, such as state troopers who arrived, but never did so.

Acting against the orders of an incident commander during an emergency can be dangerous and chaotic, McCraw said, responding to a question about why his troopers did not take charge. But he said the failure of one police agency means all law enforcement performed unacceptably that day.

The story notes the comparison of what Arredondo had said to more recent reporting; you can also see a list of places where the two accounts differ in this subsequent Trib story. One almost feels a little sorry for Arredondo. The main question I have at this point is what if anything are we going to do about this? Forget about adopting any kind of gun safety measures, which Greg Abbott will not do, are we interested in any laws that might prevent, or at least disincentivize, police behavior like what we got in Uvalde when the next mass shooting (whether at a school or not) occurs? One possibility I can think of that also will never pass through a Republican legislative chamber is to dial back qualified immunity for law enforcement officers, at least in this kind of circumstance. If the next Pete Arredondo has to worry about getting his ass sued for taking no action at the next gun massacre, maybe he’ll be more inclined towards action. Whether that might end up as a net positive or not, I can’t say. But it’s at least something we could talk about doing, rather than just talk. And someone else, maybe even someone with actual expertise in the matter, may have better ideas. Reform Austin and the Chron have more.

Of course we don’t do nearly enough for mental health

Because Republicans rush to talk about “mental health” every time there’s another mass shooting, it’s important to remember that their response to meeting the demand for mental health, in schools and elsewhere, has been completely inadequate.

Tucker’s was the kind of positive outcome state lawmakers pictured in 2019, when they worked to increase mental health resources for students after the mass shooting at Santa Fe High School that left eight students and two teachers dead.

Access to those services again is at the forefront as Republican leaders respond to last week’s massacre in Uvalde.

Mental health experts say the 2019 initiatives, including hundreds of millions of dollars more in funding, have only begun to address Texas’ mental health crisis, and that the state does little to track even their limited outcomes. Many school districts are left to fund their own interventions.

There is little evidence that mental illnesses cause mass shootings or that people diagnosed with them are more likely to commit violent crimes. Advocates also warn that scapegoating mental illness can stigmatize the wide spectrum of people living with psychological disorders.

“It’s absolutely something that should be addressed — but it’s not a panacea,” said Greg Hansch, executive director for the Texas chapter of the National Alliance on Mental Illness. “It’s more of a secondary or tertiary factor.”

Gov. Greg Abbott and other top Republicans have pointed to the shortage of mental health resources, especially in rural Texas, as a key factor in the Uvalde shooting, while rejecting calls for stricter gun laws.

The 18-year-old gunman, who killed 19 children and two adults, legally purchased the assault-style weapon he used in the shooting spree and had “no known mental health history,” Abbott said.

Even with the 2019 reforms, mental health care remains vastly underfunded in Texas. That largely is because of budget cuts two decades ago and years of stagnant funding to community mental health services. Today, Texas provides less access to care than any other state, and nearly three quarters of children and teenagers with major depression do not get treated, the highest rate in the country, according to the nonprofit group Mental Health America.

Without a direct source of state funding for mental health care, school districts in Texas are forced to rely on a patchwork of state and federal programs, most of which do not guarantee that money will flow to mental health services for students or training for teachers. As a result, only a tiny fraction of Texas’ roughly 1,200 public school and open-enrollment charter districts have enough counselors, social workers and psychologists to meet professionally recommended student-to-provider ratios, according to a recent Houston Chronicle analysis.

Central to lawmakers’ 2019 response was a new mental health consortium overseen by the University of Texas System, with a $99 million initial investment for programs focused on children and teens, including virtual visits between child psychologists and students referred by school staff. The Legislature also increased funding to Communities in Schools, which places staff directly on campuses and had employed Tucker’s social workers.

In addition, lawmakers required school officials to form “threat assessment teams” to identify students who may pose a risk of violence, and put forth another $100 million to school districts every two years that can be used to hire security personnel, provide mental health services and buy physical upgrades, such as metal detectors and bullet-resistant glass.

In the first year, however, just 12 percent of Texas school districts reported using any of the funds for mental health support, while 8 percent said the money was used for behavioral health services, according to a survey by the Texas School Safety Center at Texas State University.

A task force later found the Texas Education Agency was not collecting meaningful data on mental health programs in schools, including the number of students they serve or “any standard outcomes” they measure. The Legislature responded with a bill last year to bolster reporting, but the agency has yet to release any results.

Annalee Gulley, director of public policy and government affairs for Mental Health America of Greater Houston, said lawmakers have taken encouraging steps to support mental health but should have paired the funding with more direction for school officials on how to spend it.

“A critical lesson learned in the years following the Santa Fe High School shooting is funding alone is not enough,” Gulley said. “Instead, the state must connect financial resources to guidance on the most effective strategies to support the safety and well-being of educators and students following such a catastrophic event.”

Much of the focus since 2019 has been on the telehealth effort known as TCHATT, including more than $50 million in added pandemic funding last year. The program has been slow to expand, however, serving only about 6,000 students so far. By comparison, Communities in Schools serves 115,000 students annually on a $35 million budget. There are more than 5 million students in Texas.

So yeah, still a long way to go, and that’s before we get to things like the challenges of hiring all of the counselors that would be needed in Texas’ 1200 school districts and thousands of schools. And this story never mentions the need to expand Medicaid, which would be the single biggest thing that we could do in Texas to improve mental health care for everyone, not just for students. I started the draft of this post a couple of weeks ago, before the Cornyn/Murphy gang got what passes for traction on a bipartisan framework for a gun control bill (still no bill, and the framework remains under negotiation, but there’s an agreement to come to an agreement, and that’s the progress in question), and since then we’ve had that, more ridiculous talk about all of the non-gun things that actually cause mass shootings, the lunatics at the Texas GOP convention basically accusing Cornyn of treason, and a bunch more people getting shot and killed, but we haven’t had much talk about mental health. As with gun control itself, the Republicans and their gun enablers will be happy to just let that fade away, until the next time it has to be trotted out as an excuse for the latest mass casualty.

If committees are all we’re going to get, then let’s get something from the committees

Not too much to ask, I hope.

Texas House Speaker Dade Phelan on Friday announced the creation of a legislative committee to investigate the Uvalde shooting.

“The fact we still do not have an accurate picture of what exactly happened in Uvalde is an outrage,” the Beaumont Republican said in a statement announcing the committee. “Every day, we receive new information that conflicts with previous reports, making it not only difficult for authorities to figure out next steps, but for the grieving families of the victims to receive closure. I established this investigative committee for the dedicated purpose of gathering as much information and evidence as possible to help inform the House’s response to this tragedy and deliver desperately needed answers to the people of Uvalde and the State of Texas.”

The three-person investigative committee will have subpoena power for its investigation and will be led by state Rep. Dustin Burrows, a Lubbock Republican who is an attorney. El Paso Democrat Joe Moody, a former prosecutor, will serve as the committee’s vice chair. Former Supreme Court Justice Eva Guzman, who recently lost a bid to become the Republican nominee for attorney general, will also be a member of the panel.

Phelan said Burrows, Moody and Guzman have “decades of experience in civil and criminal litigation matters” that make them well-equipped to conduct the committee’s investigations.

The speaker’s latest announcement comes days after he voiced his support for ending the “dead suspect loophole” in Texas public records laws, which could impede the public’s ability to get answers about the police response to the shooting. Law enforcement agencies often use a statute in the law to shield from public release records related to incidents that don’t lead to a conviction, including in cases in which the suspect dies before a chance to prosecute.

“It’s time we pass legislation to end the dead suspect loophole for good in 2023,” he said on social media on Wednesday.

Better than its Senate counterpart, which is admittedly a low bar. I’d not heard of the “dead suspect loophole” before. I’m fine with closing it, but please don’t tell me it’s going to promote gun safety or reduce gun violence in any way. It’s worth doing on its own merits, and it would mean the Lege didn’t do absolutely nothing. It’s also an extremely small step to take, and we should not be close to satisfied with it.

I do hope this committee uses its subpoena powers, because good Lord there are so many things that still need to be explained.

The Uvalde school district police chief who led the response to last week’s shooting and made the decision to wait for reinforcements while the gunman and survivors were still in the building did not have a police radio when he first arrived on campus, possibly missing reports about the 911 calls coming from inside, according to news reports.

Pete Arredondo, police chief for the Uvalde Consolidated Independent School District, instead used a cellphone to call a police landline to tell officers about the shooter, The New York Times reported Friday. Arredondo told his department that the gunman had an AR-15 but was contained, the Times reported, and to send backup and surround Robb Elementary School.

Arredondo’s decision-making has been widely criticized after it took more than an hour for law enforcement to breach the classroom where the gunman was holed up. Parents begged the dozens of officers outside the school to take action and tried to enter the school themselves. Some were physically restrained.

It was Arredondo who decided to not immediately confront the gunman, who killed 19 children and two teachers and injured 17 others, state law enforcement officials have said. Instead, Arredondo chose to wait for backup and equipment and to treat the gunman as a “barricaded suspect” rather than an active shooter, Steve McCraw, head of the Texas Department of Public Safety, said last week.

Meanwhile, 911 calls from students trapped inside the classroom with the gunman were pouring in to local police dispatchers — including a student begging for police officers to show up. Those calls were routed to the Uvalde Police Department, which operates independently from the school district’s police force, Roland Gutierrez, the state senator who represents Uvalde, said Thursday.

Arredondo presumably did not know about the multiple 911 calls while he was on the scene. McCraw said Arredondo believed no children were in danger, possibly because he did not know any survived inside the classroom.

“Unless there was someone relaying him info, there was no way for him to know there were 911 calls coming from inside that room,” Gutierrez told TV news station WOAI on Friday.

Unbelievable, but at this point unsurprising. The problems go way deeper than one incompetent police chief, and while he deserves a lot of blame and needs to be made to answer a bunch of questions, scapegoating him doesn’t get us anywhere. Just again, don’t ever talk to me about “good guys with guns”. It was idiotic before, and it’s insulting now. Daily Kos has more.

The very least Greg Abbott could do

You can always count on him for that.

Gov. Greg Abbott on Wednesday called on the Texas Legislature to form special committees to make legislative recommendations in response to the Uvalde school shooting.

In a letter to House Speaker Dade Phelan and Lt. Gov. Dan Patrick, the Senate’s presiding officer, Abbott told his fellow Republicans that the state “must reassess the twin issues of school safety and mass violence.” He said the committee process should start “immediately” and outlined five topics he would like the committees to take up.

Notably, the topics include “firearm safety.” Abbott last week essentially ruled out gun restrictions as a response to the massacre, in which a gunman killed 19 students and two adults last week at Robb Elementary School. He focused his attention on mental health care and school security in his public comments.

The other topics Abbott charged leadership with making recommendations on were school safety, mental health, social media and police training.

Phelan responded to Abbott’s call by saying in a statement that “conversations about the issues outlined by Gov. Abbott are already underway in the Texas House and will continue to be a top priority in the months leading up to the next school year and the legislative session.” He added that the House “will get to work immediately.”

[…]

Abbott’s critics quickly argued that the time for committees has passed. They pointed out that the Legislature also formed special committees after mass shootings in 2019, and those discussions did not prevent the Uvalde school shooting from happening.

Abbott’s Democratic challenger for reelection, Beto O’Rourke, panned Abbott’s push for legislative committees.

“Anyone can call for a committee. Only a governor can call a special session,” O’Rourke tweeted. “Do your job.”

The 2019 committees on gun violence followed the anti-Hispanic massacre at a Walmart in El Paso. A Democratic state senator from the area, César Blanco, sent Abbott a letter Wednesday saying that he appreciated the call for committees since the Uvalde shooting but noted “we have solutions ready now.” He cited nine bills he filed in the first session after the Walmart shooting, including a proposal to extend background checks to cover private gun sales. While Patrick initially showed interest in that idea — even suggesting he would stand up to the National Rifle Association to pass it — it was a short-lived crusade and the legislation never got a Senate committee hearing.

Those committees will also be stacked with pro-gun legislators, so adjust your already dismally low expectations accordingly. Despite all this, there’s a call for a special session, mostly from Dems, which I don’t expect to happen since Abbott clearly doesn’t want it to happen, no matter his “haven’t ruled it out” rhetoric. The sound you hear is Greg Abbott quietly waiting for this all to blow over.

I’m just going to leave this here:

Ask not what your Governor can do for you. Ask what your Governor can ask other people to do for him so he doesn’t have to do anything himself. The Current has more.

Republicans threaten businesses over abortion access

If you didn’t see stuff like this coming, you haven’t been paying attention.

With Texas poised to automatically ban abortion if the U.S. Supreme Court overturns Roe v. Wade, some Republicans are already setting their sights on the next target to fight the procedure: businesses that say they’ll help employees get abortions outside the state.

Fourteen Republican members of the state House of Representatives have pledged to introduce bills in the coming legislative session that would bar corporations from doing business in Texas if they pay for abortions in states where the procedure is legal.

This would explicitly prevent firms from offering employees access to abortion-related care through health insurance benefits. It would also expose executives to criminal prosecution under pre-Roe anti-abortion laws the Legislature never repealed, the legislators say.

Their proposal highlights how the end of abortion would lead to a new phase in — not the end of — the fight in Texas over the procedure. The lawmakers pushing for the business rules have signaled that they plan to act aggressively in the next legislative session. But it remains to be seen if they’ll be able to get a majority on their side.

The members, led by Briscoe Cain, R-Deer Park, laid out their plans in a letter to Lyft CEO Logan Green that became public on Wednesday.

Green drew the lawmakers’ attention on April 29, when he said on Twitter that the ride-share company would help pregnant residents of Oklahoma and Texas seek abortion care in other states. Green also pledged to cover the legal costs of any Lyft driver sued under Senate Bill 8, the Texas law that empowers private citizens to file lawsuits against anyone who assists in the procurement of an abortion.

“The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children,” the letter states.

The letter also lays out other legislative priorities, including allowing Texas shareholders of publicly traded companies to sue executives for paying for abortion care, as well as empowering district attorneys to prosecute abortion-related crimes outside of their home counties.

Six of the 14 signers, including Cain, are members of the far-right Texas Freedom Caucus. How much political support these proposals have in the Republican caucus is unclear. House Speaker Dade Phelan, R-Beaumont, declined to comment. Lt. Gov. Dan Patrick and Gov. Greg Abbott did not respond.

Since the legislative session is more than seven months away, Cain said in an email that “a quickly drafted and sent letter can hardly be said to reflect the pulse of my Republican colleagues.” He was confident, however, that his ideas would find some support in the Senate.

“Knowing that chamber and its leadership, I’m willing to bet legislation targeting this issue will be promptly filed in January,” Cain said.

But doing so would likely mean targeting companies that the state has wooed as potential job creators. Tesla, for instance, announced this month that it would pay for employees’ travel costs when they leave the state to get an abortion. Abbott celebrated the electric car company’s move to Austin last year and this year urged its CEO, Elon Musk, to move Twitter’s headquarters to Texas, too, if he completes his purchase of the social media firm.

Joke all you want about how Republicans used to be the party of big business, because that hasn’t really been true for awhile. They’re the party of “give us your donations and keep your mouth shut about anything we don’t like regardless of what your employees and customers and stockholders say and maybe we’ll leave you alone and toss you a tax cut” now. You may say that it’s unthinkable that Republicans might actually chase large employers out of the state, but a lot of unthinkable things have been happening lately. Remember how the business community helped defeat the “bathroom bill” in 2017, and issued sternly-worded statements about voting rights and further anti-trans bills last year? How’s that been going?

We are living in Briscoe Cain’s Texas now. If he doesn’t get what he wants now – and mark my words, he wants to arrest people who have anything at all to do with abortion – he’ll get it next time, as long as his Republican Party is in charge. The business community needs to recognize that they are right in the crosshairs along with the rest of us. Daily Kos has more.

“Silver loading”

I did not know this.

Sen. Nathan Johnson

The latest state to take strong action to improve affordability in its ACA marketplace is … Texas?

[…]

But let me explain some background details first. Below 200 percent of the federal poverty level (that is, $25,760 for an individual or $53,000 for a family of four in 2022), benchmark silver plans on the exchanges are both very cheap—costing nothing up to 150 percent of FPL, and just 0 to 2 percent of income between 150 and 200 percent of FPL—and further enhanced with cost-sharing reduction (CSR) subsidies, which make them roughly equivalent to platinum plans.

At incomes over 200 percent of FPL, however, the marketplace’s offerings will be greatly improved by Texas’s new state-enforced pricing regime.

More than two-thirds of Texas enrollees in ACA plans (69 percent) have incomes below 200 percent of FPL. But thanks to the more generous subsidies created last March through 2022 by the American Rescue Plan—which removed the prior income cap on subsidy eligibility—2022 enrollment in Texas grew fastest at higher incomes. Enrollment at incomes over 200 percent of FPL rose 57 percent, to 566,000. Those enrollees stand to gain most by the change in law. At higher incomes, silver plan deductibles average over $4,500 (though many services are not subject to the deductible). Gold plan deductibles, by contrast, average $1,600.

So if gold plans have lower deductibles, why should they be cheaper than silver plans? As mentioned above, for low-income enrollees, CSR raises the value of silver plans (by reducing out-of-pocket costs) to a roughly platinum level, with average deductibles under $200 for the lowest-income enrollees and $800 at the next level (150 to 200 percent of FPL). In Texas, 89 percent of silver plan enrollees have incomes below 200 percent of FPL, and so the average silver plan sold in the state really does match a platinum-level “actuarial value,” or the percentage of the average enrollee’s costs the plan is designed to cover.

During the Obama administration, the federal government reimbursed insurers directly for providing CSR, and silver plans were priced as if no CSR were attached. When Trump abruptly cut off those direct CSR payments in October 2017, however, almost all state regulators responded by allowing or encouraging insurers to price the value of CSR directly into silver plans—a process that came to be known as “silver loading.”

Here’s where the quirk comes in. Because ACA premium subsidies, designed so that the enrollee pays a fixed percentage of income, are set to a silver plan benchmark (specifically, the second-cheapest silver plan), higher silver premiums mean higher premium subsidies across all plans—and discounts for subsidized buyers in bronze and gold plans.

But silver loading has stopped halfway. As the author of the “focused rate review” bill, Texas state Sen. Nathan Johnson, points out in the bill analysis, “insurers have not approached silver loading in a uniform manner. The resulting misalignment of premiums has caused Texans to lose out on hundreds of millions of dollars in federal marketplace subsidies, making coverage less affordable.”

Why? Since a majority of marketplace enrollees have incomes below 200 percent of FPL, silver is still the most popular metal level, and so when insurers are in a competitive market, the price of a silver plan gets competed down (though when there is just one insurer, or a dominant insurer, they can and do take advantage of the rules, often to create huge discounts).* In most of the country, gold plans are still priced well above silver, and bronze plan discounts are not as big as analysts (including the Congressional Budget Office) expected them to be when anticipating Trump’s cutoff of direct payments for CSR. A handful of states, however, have effectively ordered insurers to fully price the value of CSR into silver plans.

With Johnson’s bill, Texas joined them. S.B. 1296 directed the Department of Insurance to, as the bill analysis phrases it, “focus its rate review in a manner that uniformly maximizes the benefits of silver loading, making coverage more affordable.”

On March 28, the Texas Department of Insurance issued a proposed rule to flesh out that legal directive. The rule directs insurers to use a “CSR pricing factor” of 1.35—that is, to price silver plans at 1.35 times what they would charge if there were no CSR. That rule effectively prices silver plans close to a platinum level. Gold plans are generally priced at about 1.2 times the cost of silver with no CSR.

The CSR pricing factor is slightly below the level implemented in 2022 in New Mexico, 1.44, which led to the lowest-cost gold plan in each rating area being priced an average of 11 percent below the benchmark silver plan. In New Mexico markets, several gold plans are priced below benchmark. Accordingly, in 2022, 69.5 percent of New Mexico enrollees with incomes above 200 percent of the federal poverty level chose gold plans, compared to 24.4 percent of Texas enrollees above the same threshold.

The rest of the story is about how momentum for this idea came from a couple of conservative actuaries plus a former aide to Greg Abbott now working at the non-partisan think tank Texas 2036, who were able to get Republican buy-in for the idea, and the House sponsor for Sen. Johnson’s bill, Rep. Tom Oliverson. The details are wonky and I definitely don’t understand all of them, but the bottom line is that in Texas another 200,000 people now have access to affordable heal insurance. And the guy that wrote the bill to make it happen is the guy that escorted the vile Don Huffines out of the Senate in 2018. Not too shabby. Charles Gaba, who brings even more wonkiness, has more.

Republicans are not going to stop passing anti-abortion bills

It’s what they do. There is no finish line for them.

During their 20 years in control of the Texas Legislature, Republican lawmakers have steadfastly worked to chip away at abortion access.

Bound by the limits of Roe v. Wade, which stopped them from enacting an outright ban on the procedure, lawmakers got creative. They required abortion clinics to have wide hallways and deputized private citizens to sue providers in an effort to shut down facilities that offer the procedure.

Future lawmaking on the topic will likely not require such ingenuity. A leaked draft of a U.S. Supreme Court opinion, published last week by Politico, suggests the court will reverse the landmark abortion ruling in the coming weeks, allowing states to regulate abortion as they see fit. Texas has a “trigger law” that would make performing an abortion a felony, which would go into effect 30 days after the Supreme Court overturns Roe.

Their decadeslong goal achieved, Republican lawmakers said there’s still work to be done. Texas GOP leaders and members of the Legislature said it is now time to turn their attention to strengthening the social safety net for women and children and investing in foster care and adoption services.

“It only makes sense,” said Rep. Steve Toth, R-The Woodlands. “The dog’s caught the car now.”

At least some of the more conservative members of the House said they also want to ensure strict enforcement of the abortion ban and to prevent pregnant Texans from seeking legal abortions in other states.

“I think I can speak for myself and other colleagues that align with my policy beliefs — we’ll continue to do our best to make abortion not just outlawed, but unthinkable,” said Rep. Briscoe Cain, R-Deer Park, a member of the far-right Freedom Caucus.

Texas already has an arsenal of statutes to punish virtually anyone involved in the procurement of an abortion, said University of Texas at Austin law professor Liz Sepper. These include last year’s Senate Bill 8, which empowers private citizens to sue anyone who “abets” an abortion after six weeks of gestational age, as well as unenforced pre-Roe abortion statutes criminalizing a person who gets the procedure, which the Legislature never repealed — some dating to the 1850s.

“If Roe is overturned, there’s already a criminal ban, there’s already an aiding and abetting ban, there’s already a ban on mailing medication abortion,” Sepper said. “In terms of law’s ability to change behavior, they’ve almost filled all the gaps — with the exception of criminalizing the pregnant person involved in an abortion.”

And you better believe that’s where they’ll be going next, though to be sure there are plenty of other avenues for them to pursue as well. This is what gives creeps like Briscoe Cain their purpose in life. If somehow they do eventually run out of things to ban, next up after that is increasing penalties and making it easier for law enforcement to go after whoever the likes of Cain thinks are getting away with something. Listen to what they’re saying – they are not being coy at all about this.

Now as for the claims that maybe now it’s time to do a little something to “strengthen the safety net”, well, let’s just say that they are starting from a position of abolutely no credibility.

With a near-total abortion ban looming in Texas, advocates and experts say the state’s support systems for low-income mothers and children are already insufficient — and won’t easily bear an increase in need.

“When you say ‘social safety net’ in Texas, it sounds like a joke,” said D’Andra Willis of the Afiya Center, a North Texas reproductive justice group. “Everything they could have set up or increased to protect people if they really cared, they’re not doing it here.”

Pregnant women in Texas are more likely to be uninsured and less likely to seek early prenatal care than the rest of the country. They’ll give birth in one of the worst states for maternal mortality and morbidity. And low-income new parents will be kicked off of Medicaid sooner than in many other states.

This would make many Texans want to avoid pregnancy altogether. But learning about, let alone accessing, contraception can be a challenge in a state that does not require sex education and has narrowed family planning options in recent years.

Republican lawmakers, many of whom have focused on restricting abortion access in recent years, have said strengthening the state’s social safety net will now become a top priority. But advocates who have been working on these issues for years say any help will likely be too little, too late.

“People fail to realize that this is bigger than abortion access,” Willis said. “We’re going to be setting people up for generational poverty.”

As with so many other policy items, like boosting mental health care as their prescription to reduce mass shootings, the single biggest thing they could do to achieve that goal would be to expand Medicaid. More than 55% of all births in Texas are paid by Medicaid. I think you can guess how high that is on their priority list. But even if you want to give them a tiny bit of benefit of the doubt, note that it’s just now that they are on the verge of achieving an abortion ban that they’re even beginning to think about maybe doing something to benefit those who are pregnant and have given birth. Look at their priorities, that will tell you how much that counted for them. Why would you expect that to change going forward?

End the “tampon tax”

I approve.

Rep. Donna Howard

A coalition of menstrual health organizations is appealing a decision by the Texas Comptroller’s Office to deny its protest against the state sales tax, which they say unfairly and unconstitutionally does not exempt tampons, pads and other hygienic products.

If the dispute isn’t resolved on the administrative level, Meghan McElvy, partner at the Houston-based international law firm Baker Botts, said she plans to take the case all the way to the Texas Supreme Court if necessary. The law firm is taking up the case pro bono on behalf of the Texas Menstrual Equity Coalition.

“It’s just kind of a no-brainer issue to me,” McElvy said. “(Male) libido enhancers are tax-exempt, but medically necessary products for women are not.”

The group, which includes a large number of youth-led advocacy organizations, has asked for a re-determination hearing from the Comptroller’s Office. It comes after the agency denied their original request for a refund of sales tax on tampons, pads and panty liners bought by a Harris County woman.

This is just the latest effort in a national movement that kicked off in the 2010s aiming to end the so-called “tampon tax.”

As of now, a slim majority, or 26 states, tax menstrual products, while the rest do not, either because they have exempted them or because they’re one of the five states that don’t levy a sales tax, according to Period Law, an advocacy and legal organization.

States with exemptions include Illinois, Maryland, Massachusetts, Minnesota, New Jersey and Pennsylvania.

In Texas, state lawmakers in recent years have attempted to pass bills on the matter without success. Rep. Donna Howard, D-Austin, who chairs the Texas Women’s Health Caucus, has filed a bill every session since 2017. In 2021, House Bill 321 got out of committee but never made it to the House floor — the most progress any such bill has ever made.

Howard credited young women in high school and college, many of whom belong to groups that run donation drives to help low-income people access the products, with moving the needle last year by showing up in Austin to testify on the bill. She said she hopes to to build on their progress in the upcoming legislative session.

“We know there are a large number of Texas girls and women who do not have enough money to afford these products,” she said. “(A sales tax exemption is) not going to go a long way, but it’s a step in right direction.”

Howard said most of the pushback at the Legislature comes from members concerned about the budget. The Comptroller’s Office estimated in 2021 that the bill would have cost the state about $42 million in lost revenue in the next two-year budget cycle.

“In the grand scheme of things, this is a very small fiscal impact,” Howard said. “I keep going back to the discriminatory part of it because at some point, you make decisions because they’re the right decisions to make.”

I say they’re necessary health products, and on those grounds they should be exempted from the sales tax, as many other items are. The amount of revenue it would cost the state is pocket change in context of the budget. Legalizing marijuana, as Oklahoma has recently done, would generate far more than that to make up for it. Don’t even get me started on the various property tax loopholes and exceptions that could be fixed as well. This is a small thing we can do to make life a little easier for a lot of people. As Ms. McElvy says, it’s a no-brainer.

Dan Patrick wants a “Don’t Say Gay” bill for Texas

Of course he does.

Lt. Gov. Dan Patrick said Monday he will prioritize passing Texas legislation that mimics the recently signed Florida bill referred to as the “Don’t Say Gay” law.

That state’s controversial law prohibits classroom lessons on sexual orientation or gender identity for kids below the fourth grade or any instruction that is not “age-appropriate or developmentally appropriate” for older students. It has come under heavy scrutiny as opponents of the bill say it will harm LGBTQ children.

While Texas’ next legislative session doesn’t start until January, the issue will be addressed in Education Committee hearings before then, Patrick said in a campaign email.

“I will make this law a top priority in the next session,” he said.

Patrick’s office did not immediately respond to a request late Monday.

Enforcing Florida’s law falls to parents, much like Texas’ restrictive abortion law, Senate Bill 8, which empowers private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy.

A parent can sue a school district for damages if they believe it has broken the law. If they win, parents will receive money and recoup attorney fees. In Florida, the law’s supporters portrayed it as a way to give more rights to parents. Gov. Greg Abbott has similarly said parents should have more rights concerning their children’s education as he campaigns for a third term.

Val Benavidez, executive director of the Texas Freedom Network, said in a statement to The Texas Tribune that Patrick’s promise to bring similar legislation to the state is a “stain on Texas.”

“Gender expression by children is not something that is scary or harmful. What is scary is that political activists are grasping at power by overstepping into the lives of Texas families and education of students,” Benavidez said. “While politicians use hate speech that is far from center to harm our vulnerable youth, we will continue to love our children and make sure that all families are uplifted in public life.”

Look, we know Dan Patrick means what he says when he says crap like this. He hates LGBTQ people, and he’s going to do everything he can to make their lives miserable, especially now that he’s seeing other states do things that Texas doesn’t do. We can either vote him out, or we can watch him do what he says he’s going do. Not much else to say about it.

No one should have to put up with this level of crappy service

That’s the plan. Make people give up and walk away.

[Pam] Gaskin and her husband, Michael, were denied ballots twice this month over procedural mishaps — and if she were any less determined to vote, it may have stayed that way.

“I’ve been a voting rights activist all my life, and I’m 74 years old,” said Gaskin, now a Missouri City resident. “And I have not seen anything like this. I really haven’t.”

The first time, Gaskin submitted the wrong form, though she’d downloaded it from the Fort Bend County website. The new ID requirement warranted a new application, but the county hadn’t updated the document online when Gaskin grabbed it on Jan. 3.

With the new form at her fingertips, Gaskin tried again on Jan. 14. The document stated clearly: “YOU MUST PROVIDE ONE of the following numbers,” before offering space first for a driver’s license number and second for the last four digits of her Social Security number.

The second number, it said, was only necessary “if you do not have a Texas driver’s license, Texas personal identification number or a Texas election identification certificate number.” So, she filled it out using her driver’s license ID and called it a day.

On Jan. 20, Gaskin received her second denial. The rejection letter told her she hadn’t provided the same number she used when registering to vote — 46 years ago, when she moved to Fort Bend County. She called the county to ask what number was missing, but an employee told her she couldn’t say, fearing she would violate the new law.

And so Gaskin started a game of 20 questions, quizzing the elections worker on which detail was missing until she could confirm it was her social security number. (Remi Garza, the president of the Texas Association of Elections Administrators, said the worker was probably being “overcautious.”)

She filled out a third application and finally received her ballot on Monday.

Still, the incident prompted Gaskin to pen a letter to Gary Bledsoe, the head of the Texas NAACP, documenting her experience.

“I keep up with changes in the laws that affect voters and often speak to church groups and other community organizations,” she wrote. “I have NEVER experienced anything like these misguided and Jim Crow-like rules concerning voting. This is almost as bad as asking people how many jelly beans are in the jar.”

Gaskin, who has been a member of the Texas League of Women Voters for about 25 years, worries that others won’t be as persistent as she has been.

See here, here, and here for some background. If this wasn’t a deliberate effort by the Republicans in the Lege to make it harder for a particular segment of the population to vote, then it’s a combination of malpractice-levels of ignorance on the part of those legislators, who had plenty of testimony telling them what would happen, and a high level of incompetence from the Secretary of State, who has been pulling double duty on that front. You can believe there was no bad intent if you want, but the results speak for themselves. Not-bad intentions only get you so far.

Hundreds of other Texans have experienced similar problems. Earlier this month, nearly half of all mail ballot applications in Fort Bend County were rejected because they didn’t meet new stipulations in the elections law.

Now, county Elections Administrator John Oldham says that number has dropped significantly. Oldham estimated that he’d rejected about four out of 100 applications he processed this weekend.

That’s partially because the county found a way around the errors, he said. If a person provides a driver’s license number that’s not in the state voter registration system, county employees can now look elsewhere to find the information and add it to their voter file.

“It’s a lot more work, but it did cut down the rejections considerably,” Oldham said, adding that the Secretary of State’s office hadn’t initially informed the county of that option.

Sam Taylor, a spokesman for the Secretary of State’s office, told Hearst Newspapers earlier this month that the agency is working closely with counties to answer questions and provide assistance as they work through the new ballot laws. Counties can also accept applications that include both ID numbers, he added.

That at least is good news, and if you are or know someone who has been frustrated by this ridiculous process, you need to keep at it. Make sure you’re using the current form, include both your drivers license number and your SSN, and hope for the best. And then remember you’ll have to do this every damn election, because the goal was to make it harder on you. Mission accomplished.

This is what voter suppression looks like

I have four things to say about this.

A Harris County man fears new voting laws may prevent him from voting by absentee ballot for the first time in his lifetime.

Kenneth Thompson, 95, has been checking his mail daily in hopes his mail-in ballot is among the pile.

Thompson has been voting since he was 21-years-old, and he even recalls paying a $0.25 poll tax in the 1950′s.

“I’ve been voting many, many years and I’ve never missed a vote,” Thompson said.

Thompson considers voting a duty. He served in the U.S. Army in WWII during the European Theater for the right to vote and other freedoms.

Decades later, the vet fears Texas’ new election law, SB1, could prevent him from voting for the first time in his life.

Per law, Thompson must either provide part of his social security number or his driver’s license number that matches his registration record with the county or state.

“He registered to vote in the 1940′s and they didn’t require that,” said Thompson’s daughter, Delinda Holland.

Since Holland can’t meet the new requirement, his mail-in ballot application was denied twice. The veteran said Harris County election officials never notified him and he had to call to find out both times.

“There’s gonna be a lot of people not gonna vote,” Thompson said. “If I hadn’t have called in about mine, people wouldn’t have known.”

Thompson’s daughter, Holland, who has only missed voting in one bond election herself, said she’s even tried contacting the county and state Secretary of State’s Office to add her dad’s license number to his registration file online. She said she discovered there’s not actually a way to have that done.

“We know it’s a new law, we’re happy to correct it,” Holland said. “He’s a law-abiding citizen. He doesn’t want to miss voting, and yet, there’s no mechanism to add that driver’s license to your record.”

Holland said she had to re-register her dad last week to ensure he makes the Jan. 31, 2022 voter registration deadline. Thompson said he hopes he’ll have a ballot in the mail soon, otherwise he plans to vote in person.

1. Yes, this is voter suppression. This guy has been voting for over 70 years, and now he’s being asked to provide a number to match a non-existent value in a database. Putting aside the question of how this ludicrous charade enhances “election integrity”, this is suppression because it’s an obstacle that was put in the way of a lot of people who have no easy way to overcome it. Look at what he’s had to go through to try to be able to vote as he’s been used to voting and is legally entitled to vote, and then multiply it by however many thousands of people in similar straits. The people who wrote and supported this law knew for certain this would happen – they were explicitly told it would happen – and they didn’t care. The fact that he will ultimately vote in person if he doesn’t get a mail ballot is irrelevant, as many people in the same position will not have that option.

2. Part of the issue here is that Mr. Thompson hasn’t been able to get the help he needs from Harris County or the Secretary of State. We know that county election officials have not been able to get accurate information about the new law from the SOS office in a timely fashion. The SOS office, likely due to a combination of the law being big and complex and there not being a lot of time to read and understand it as well as the fact that the person in charge is a partisan hack who has no commitment to voting rights, has been overwhelmed. The SOS certainly deserves its share of the blame, but again Republican legislators could and should have known this would happen. They could have very easily delayed implementation of the law until 2023 or 2024, to give everyone sufficient time to adjust to it. But they didn’t, because making it harder for people to vote was the point and they didn’t want to wait for that to happen.

3. It’s hard to imagine a more sympathetic victim than a 95-year-old World War II veteran. There was a time when the revelation of his plight would have gotten a reaction from the people who are responsible for it, with at the least some apologies and assurances that they didn’t mean for this to happen and that they would do what they could to make it right for him and people like him. I’m not going to hold my breath waiting for a single Republican elected official to say any of these things now.

4. In the name of all that is sacred, don’t read the comments. You think the comments on newspaper articles are bad, hoo boy.

Sure, let’s blame the supply chain for voter registration problems

I have a simple solution for this, if anyone wants to hear it.

Still the only voter ID anyone should need

The Texas Secretary of State’s office is having more trouble than usual getting enough voter registration cards to groups who help Texans register to vote.

Sam Taylor, assistant secretary of state for communications, said supply chain issues have made it harder and more expensive to get paper, which means the Secretary of State’s office will be giving out fewer voter registration forms to groups ahead of elections this year.

“We are limited in what we can supply this year, because of the paper shortage and the cost constraints due to the price of paper and the supply of paper,” he said.

Grace Chimene, the president of the League of Women Voters of Texas, said it is not unusual for the Secretary of State to not have enough forms to fill all the requests it gets from groups like hers ahead of elections. This particular shortage, however, is affecting an important part of her group’s work: registering thousands of newly naturalized citizens.

Chimene said in previous years, her group, which has chapters across the state, has been able to get enough forms to pass out at naturalization ceremonies. Often, she said, the group partners with the state to give out several thousand forms at each ceremony.

“The League in Houston registers about 30,000 new citizens every year through these ceremonies in the past,” Chimene said.

[…]

Taylor said the Secretary of State’s office has been forced to limit each group to 1,000 to 2,000 registration forms per request. He said this shortage is coming at a time when many groups are seeking out new voter registration forms because of a change in Texas’ voter registration laws created under Senate Bill 1, a controversial voting law that went into effect last month.

“The voter registration application changed this year for one reason: It’s because the legislature decided to increase the penalty for illegal voter registration from a class B misdemeanor to a class A misdemeanor,” he said.

Previously, Taylor said that change had to be reflected on registration applications in order for them to be approved. But, after this story was published Tuesday, he clarified that’s not necessarily the case.

“While we have made clear to officials and groups that they should not be distributing the old version of the Voter Registration form, county voter registrars may accept completed voter registration applications on the old form, so long as the application is otherwise valid,” Taylor said in a statement Tuesday. “In other words, using last year’s form in and of itself is not fatal to the voter’s registration application.”

Chimene said all these constraints present serious issues for her group as they try to get voter registration materials together ahead of these large naturalization ceremonies.

“We are treating all organizations that request these the same,” Taylor said. “We are trying to fulfill these requests as fast we can. But the fact is we simply don’t have the supply to honor every single request for free applications.”

According to Chimene, this is one of the pitfalls of Texas being among the few states in the country that does not have online voter registration. Supply chain issues are not as big of a problem when you can just direct someone to a website.

I mean, give me a break. First, as noted before, there is no reason to trust John Scott. Do not take him at his word. News folks, you need to push him a lot harder on this.

Second, I know we’re only allowed to do online voter registration in certain limited circumstances, and we’re not going to get a special session to get the Lege to authorize further uses of it. You can, however, fill out the form on the SOS website, which you then have to print and sign and mail in, because that’s how we roll here. What it appears that you can’t do is just download and print the form itself, on your own paper, for use at things like voter registration drives. The LWV could bring iPads or laptops to those naturalization events and have the new citizens do the form-filling online, but then each one would have to be printed as they go. Not very conducive to such efforts. We are absolutely committed to doing this in the least convenient and most stupid way possible.

Oh, and we also have the absentee ballot rejection issue, and a lack of training materials, and other issues. Not all of this is the SOS’s fault, but it is their job. And either they failed to communicate to the Republicans in the Lege and Greg Abbott just how much they were about to screw things up, or (more likely) failed to get them to listen and care. And here we are.

So sure, blame the supply chain. Anything to distract from the real problem.

Crystal Mason using SB1 to try to overturn her illegal voting conviction

Hope this works. It would be one small good thing to come out of that otherwise harmful law.

Crystal Mason, the Tarrant County woman whose illegal voting conviction has garnered national attention, is asking for a Texas appeals court to overturn her conviction under a new provision of Texas’ recently adopted election law Senate Bill 1.

Mason, 46, was sentenced to five years in prison for attempting to cast a ballot in 2016′s presidential election. At the time, Mason was on supervised release from a federal tax fraud conviction and was prohibited from voting in Texas.

Her lawyers with the American Civil Liberties Union this week filed a brief with the Texas Court of Criminal of Appeals citing the state’s new election law that took effect earlier this month in asking for her conviction to be overturned.

Tucked within SB 1 that was passed by the Texas Legislature in this year’s second special session is a section erasing criminal penalties for felons who attempt to vote without knowing that they were committing a crime. That portion of the law came about with Mason’s conviction in mind.

“SB 1 is a repudiation of Ms. Mason’s conviction and five-year sentence of incarceration,” the brief states.

[…]

Her attorney with the American Civil Liberties Union declined a request for comment. The Tarrant County District Attorney’s office, which prosecuted and has argued against overturning Mason’s conviction, said in an emailed statement that SB 1 has no bearing on Mason’s case.

“Even under the new law, she is guilty,” office spokeswoman Anna Tinsley Williams said. “She wasn’t convicted simply for casting the provisional ballot; she was convicted for casting a provisional ballot when she knew she was ineligible to vote. Knowledge of ineligibility is the key. This is not a case of mistaken voting.”

See here and here for some background. House Democrats had negotiated an amendment in the original bill during the regular session that would have retroactively covered Mason’s case, but it was taken out in the conference committee version by Senators on the committee, and that breaking of the faith was one of the catalysts for the initial quorum break during the regular session, which prevented the bill from getting a final vote. In the second special session, after House Dems had returned from Washington, a similar amendment was added to the House version of the bill, but it again ran into resistance in the Senate, with bill author Bryan Hughes the main obstacle. (How bad does Hughes look when even Briscoe fricking Cain was willing to add this provision to the bill?) If people can read the final version of the bill to include or not include Crystal Mason in its scope, then it’s at best a tossup what the CCA will do, and given their usual pro-prosecution bias, I can’t say I’m optimistic. But it’s sure worth the try.

Quinn Ewers

This story caught my eye.

They got played by an 18-year-old.

Depending on your sports acumen, hearing the name Quinn Ewers either makes your ears perk up or leads you to ask, “Who?”

The former Ohio State quarterback’s name is back in the news – again – after announcing that he’s leaving the school to enter the transfer portal. Just a few months ago, Ewers made national news when he skipped his senior year of high school to enroll early at Ohio State so that he could capitalize on NIL money. It’s been reported that he’s made over $1 million.

“If I enroll at Ohio State, obviously I’d be able to make money off the deals, and I feel like it’d be a big advantage of learning the playbook and getting comfortable with the campus and all my teammates,” he told Yahoo Sports in July. “But if I stay and don’t get paid, I may be able to win a state title.”

Because Texas, where Ewers is from, is a terrible place run by a litany of unintelligent Republicans, the state’s University Interscholastic League has a rule that won’t let high school athletes like him profit off NIL – even though he was the state’s biggest recruit, wanted to stay home and play, and was the No. 1-ranked player in his class.

So, since the system wanted Ewers to leave over $1 million on the table, Ewers finessed them by graduating early and enrolling at Ohio State in a glorified redshirt season that put a lot of money in his pocket, while also getting him acclimated with being a college athlete. And after only taking two snaps all season, Ewers is back on the market, and it’s expected he will wind up on a roster in Texas next season a whole lot richer than when he was when he left.

The Texas connection and the mention of a rule about NIL for high school athletes intrigued me, so into the Google rabbit hole I went. First, I found several stories about Ewers’ pending transfer, which may be to UT, A&M, Texas Tech, or who knows where else, but none filled in the blanks for me about that “rule”. I searched more specifically about the Lege and “name image likeness”, and found this Trib story.

College athletes in Texas will soon be able to receive compensation from outside businesses that want to use their name, image or likeness under a new law Gov. Greg Abbott signed Monday evening.

State Sen. Brandon Creighton, R-Conroe, said he sponsored the bill to keep Texas collegiate athletic programs competitive as other states have passed similar legislation. At least 15 states have passed bills lifting the ban on allowing student athletes to be paid by outside parties since California was the first state to approve the change in 2019.

NCAA rules ban athletes from receiving any kind of compensation other than scholarships for playing college sports. This law would not change that ban on direct payment by a college or university, but would allow college athletes to receive payment elsewhere.

The bill overwhelmingly passed the Texas House and Senate, though some lawmakers expressed concern it would negatively affect college sports, which multiple lawmakers said should “be played for the love of the game.” Supporters said college athletes deserve to benefit from the industry in which they play a major role.

“The biggest winner in this needs to be all of the student athletes,” said state Sen. José Menéndez, D-San Antonio, on the Senate floor in April. “We gain entertainment. Universities gain revenue, and they need to share in that because of their hard work.”

The NCAA Board of Governors voted to allow players to be paid for their name or likeness in October 2019, but the Division I Council postponed a vote on specific rules in January as it continued discussions with the federal government over rules.

I did not blog about that at the time, though I did note the California law and its potential effect on Texas back in 2019. The bill in question is SB1385, but it’s about allowing college athletes to get paid, not preventing high school athletes from doing the same. Still, it’s the most likely vehicle for such a restriction, and in reading the text of the bill, we see the following:

No individual, corporate entity, or other organization may:
(1) enter into any arrangement with a prospective student athlete relating to the prospective student athlete’s name, image, or likeness prior to their enrollment in an institution of higher education

That right there appears to be the prohibition on high school athletes making the same kind of arrangement for themselves, and indeed a visit to the UIL webpage confirms that:

It is the opinion of UIL staff that a transaction in which a student-athlete is engaged “to promot[e] a product, plan or service related to a UIL sport or contest” using the student-athlete’s NIL in exchange for compensation received by or on behalf of the student-athlete would be in violation of Section 51.9246 of the Education Code and Section 441 of the UIL Constitution and Contest Rules.

It is the opinion of UIL staff that the student-athlete would be in violation of this section if an agreement was executed prior to the student being enrolled in an institution of higher education, even if the student, or a third-party receiving compensation on behalf of the student, does not receive compensation “until all athletic competitions are completed in the 12th grade.” Section 441(a)(2) prohibits the receipt of “valuable consideration,” which covers any inducement, including a promise of future compensation.

They are referencing the section of the Education Code that was revised in SB1385, so that’s that. I strongly suspect that the supporters of this law did not envision the Quinn Ewers scenario, but now that it’s happened I wonder if there will be a push to amend the law to close that loophole. The Texas college that gets him on their team will be happy for this (though one could argue they’d have gotten him a year sooner if the law hadn’t been in place in this form), but his high school can’t be too happy about it. I’ll be interested to see which of those 800-pound gorillas can prevail if they disagree about the unintended side effects of this law.

Anyway. Nothing earth-shattering here – as the Deadspin story notes, Ewers comes from a well-to-do family, so this was more about the principle that he should have been able to pursue this money than the need for the money – but it’s fascinating and not something that had been on my radar. And now you know, too.