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Lawsuit against Lubbock “abortion sanctuary city” ordinance dismissed

This is gonna get weird.

Right there with them

A federal district judge dismissed on Tuesday a lawsuit to block a voter-approved abortion ban from taking effect in Lubbock, saying Planned Parenthood did not have standing to sue the city.

The decision comes just weeks after Planned Parenthood filed a lawsuit to stop the Lubbock ordinance, which outlaws abortions and empowers “the unborn child’s mother, father, grandparents, siblings and half-siblings” to sue for damages someone who helps others access an abortion. The “sanctuary city for the unborn” ordinance was passed by voters in May, after being shot down by city council members who said it conflicted with state law and could be costly to defend. It took effect June 1.

Abortion rights advocates typically sue to prevent government officials from enforcing an unconstitutional abortion restriction. But the Lubbock ordinance is solely enforced by private citizens, not state or local actors. That enforcement structure has not been extensively tested in the courts, but the judge said his rulings could not prevent private parties from filing civil lawsuits in state court.

“Because the ability to remedy a plaintiff’s injury through a favorable decision is a prerequisite to a plaintiff’s standing to sue — an ability absent here — the Court dismisses the case for lack of jurisdiction,” Judge James Wesley Hendrix wrote.

[…]

The ruling is a window into how courts may receive lawsuits about a newly passed state law that bans abortions as early as six weeks. It follows the same blueprint as the Lubbock ordinance by barring state officials from enforcing the law. But it is far broader, allowing anyone to sue those who assist with an abortion after a fetal heartbeat has been detected, like by driving someone to a clinic or paying for the procedure. People who sue do not have to be connected to someone who had an abortion or be residents of Texas. The law is set to take effect in Sept. A legal challenge is expected.

See here for the background. I confess, when I blogged about this before, I totally missed the part about this law being enforced via private lawsuits and not the city, which as all of the coverage has noted it can’t enforce because of Roe v Wade. The Lubbock ordinance only allows family members to file suit, while the state law gives that power to any rando who has a weird desire to meddle in the personal affairs of complete strangers. What this ruling says to me is that we won’t be able to begin answering questions about these two laws until someone uses one of them to file such a lawsuit. This is assuming that the reproductive rights groups in Texas don’t come up with an argument to fight the state law in federal court; I’ve not seen any writing yet to suggest a strategy, but that doesn’t mean one isn’t being developed.

In the meantime, the ordinance has had the effect its advocates envisioned, at least for now. It’s a certainty that someone will eventually sue, either there or somewhere else in Texas after the state law is put into effect. After that, who the hell knows. The Lubbock Avalanche-Journal has more.

Lawsuit filed against Lubbock “abortion sanctuary city” ordinance

Looks like this kind of tactic will finally be tested in court.

Right there with them

Planned Parenthood and the American Civil Liberties Union of Texas sued the city of Lubbock on Monday over a voter-approved “sanctuary city for the unborn” ordinance that seeks to outlaw abortions in the West Texas city’s limits.

The ordinance — which the lawsuit says is unconstitutional — was passed by local voters in May over the opposition of City Council members who warned it could not be enforced and would prompt a costly legal fight.

The lawsuit was filed in a federal district court and seeks to stop the abortion ban from taking effect on June 1.

Some two dozen cities have sought to ban abortions in their limits. Most of them have been in Texas but Lubbock is the largest and the first to have an abortion provider — making it a legal test case for the burgeoning “sanctuary city for the unborn” movement. Planned Parenthood opened a clinic to offer birth control and other services there last year, and began providing abortions this spring.

The American Civil Liberties Union of Texas previously sued seven East Texas towns that passed similar measures, but those cities weren’t home to abortion providers and had differently worded ordinances. The lawsuit was dropped.

The Lubbock ordinance would not be enforced by the government unless the Supreme Court overturned the landmark Roe v. Wade decision, or made other changes to abortion laws. It instead relies on private citizens filing lawsuits. Family members of a person who has an abortion can sue the provider or someone who assists them in getting an abortion, like by driving them to a clinic, under the ordinance.

The ordinance does not make an exception for people pregnant as a result of rape or incest.

See here for some background. As things stand now, it seems likely Lubbock will lose this lawsuit. Not that such a loss will dissuade the ordinance’s fanatical supporters of anything – among other things, they won’t be on the hook for the legal bills – but it’s something. Of course, a fresh new challenge to Roe v. Wade is now on the SCOTUS docket, so how things are now may not be how they will be as of sometime next year. It’s a lot of not great.

Abbott signs massive anti-abortion bill

We’ll see who sues who first.

Right there with them

Gov. Greg Abbott signed into a law Wednesday a measure that would prohibit in Texas abortions as early as six weeks — before some women know they are pregnant — and open the door for almost any private citizen to sue abortion providers and others.

The signing of the bill opens a new frontier in the battle over abortion restrictions as first-of-its-kind legal provisions — intended to make the law harder to block — are poised to be tested in the courts.

Abortion rights advocates have promised to challenge the new law, which they consider one of the most extreme nationwide and the strictest in Texas since the landmark Roe v. Wade decision. It would amount to an outright ban on abortions, as the six-week cutoff is two weeks after a missed menstrual cycle, opponents say.

The law takes effect in September.

[…]

Instead of having the government enforce the law, the bill turns the reins over to private citizens — who are newly empowered to sue abortion providers or anyone who helps someone get an abortion after a fetal heartbeat has been detected. The person would not have to be connected to someone who had an abortion or to a provider to sue.

Proponents of the new law hope to get around the legal challenges that have tied up abortion restrictions in the courts. While abortion providers typically sue the state to stop a restrictive abortion law from taking effect, there’s no state official enforcing Senate Bill 8 — so there’s no one to sue, the bill’s proponents say.

“It’s a very unique law and it’s a very clever law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”

Legal experts have been divided on the strategy, and abortion rights advocates have said they plan to fight regardless.

Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights, which has represented abortion providers who have sued Texas officials, said it and other abortion rights organizations are “not going to let this six-week ban go unchallenged.”

Drucilla Tigner, policy and advocacy strategist of the American Civil Liberties Union of Texas, said the “governor’s swipe of a pen can’t change the Constitution.”

While the law amounts to the most extreme abortion ban in the country, “abortion is both legal in Texas and supported by the majority of Texans,” Tigner said.

Abortion rights advocates and lawyers say the new law would allow for a cascade of lawsuits against abortion providers, that would sap their time and money even if they ultimately won in court.

Family members, abortion funds, rape crisis counselors and other medical professionals could be open to lawsuits, under the broad language in the bill, according to legal experts and physicians who opposed the measure. People who sued would be awarded at least $10,000, as well as costs for attorney’s fees, if they won.

“Every citizen is now a private attorney general,” Blackman said. “You can have random people who are against abortion start suing tomorrow.”

See here for the previous update. Not really much else to say until someone files a lawsuit one way or the other. Either this law as designed is a diabolically clever tactic for which there is no good countermove and thus gets replicated in states across the country, or it gets blocked and the zealots have to go back to the drawing board. In the meantime, winning more elections so laws like these don’t get passed in the first place would be nice. The Chron and the Texas Signal have more.

Massive anti-abortion bill heads to Abbott

And from there to the courts, in one form or another.

Legislation that would ban abortions after as early as six weeks — before many women know they are pregnant — and let virtually any private citizen sue abortion providers and others was given final approval by lawmakers Thursday and is headed to Gov. Greg Abbott, who has signaled he will sign it into law.

Senate Bill 8, a Republican priority measure, is similar to “heartbeat bills” passed in other states that have been mostly stopped by the courts. But proponents of the Texas legislation believe it’s structured in a way that makes it tougher to block.

The bill was denounced by hundreds of lawmakers and doctors — in letters circulated by opponents of the measure — who said its broad legal language could open the door to harassing or frivolous lawsuits that could have a “chilling effect” on abortion providers and leave rape crisis counselors, nurses and clinic staff “subject to tens of thousands of dollars in liability to total strangers.” Abortion rights advocates say it is among the most extreme restrictions nationwide.

The bill, which would take effect later this year, bans abortions after a fetal heartbeat can be detected without specifying a timeframe. A legislative analysis and the bill’s proponents have said that can be as early as six weeks, though state Rep. Donna Howard, D-Austin, in a floor debate cited medical experts who say there is no fully developed heart at that gestational age and that the sound referred to as a heartbeat is actually “electrically induced flickering” of fetal tissue.

The bill makes an exception allowing for abortions in the case of a medical emergency but not for rape or incest.

It would be enforced by private citizens empowered to sue abortion providers and others who help someone get an abortion after six weeks, for example, by driving them to an abortion clinic.

Those private citizens would not need to have a connection to an abortion provider or a person seeking an abortion, and would not need to reside in Texas.

See here for the previous update. The bright idea behind this is that the state won’t be enforcing the ban, private citizens who file a gazillion lawsuits against clinics and doctors will be the enforcers. As such, the state can’t be sued to overturn the law, since they’re not enforcing it. It’s clever, and it’s never been tried before, so who knows how that will play out. (You know what they say about “clever”.) Six week abortion bans have been universally blocked by federal courts so far, for what it’s worth. I’m not dumb enough to predict what might happen here. We’ll have to wait and see, and hope for the best.

Massive anti-abortion bill passes the House

I’m just resigned to this shit at this point.

Texas lawmakers are poised to enact sweeping restrictions on access to abortions, prohibiting the procedure before many women know they are pregnant, and opening the door for a potential flood of lawsuits against abortion providers.

The House on Wednesday gave initial approval to a priority “heartbeat” bill passed by the Senate earlier this spring, which was authored or sponsored by nearly every Republican senator and more than 60 members of the House. The legislation must still get another vote in the lower chamber before it’s sent to the governor, who has signaled that he is looking forward to signing it into law.

Abortion rights advocates say the legislation is among the most “extreme” measures nationwide and does not exempt people pregnant because of rape of incest. Beyond the limitations on abortion access, the bill would let nearly anyone — including people with no connection to the doctor or the woman — sue abortion providers, and those who help others get an abortion in violation of the proposed law. People who support abortion funds and clinics could also be hit with lawsuits, and lawyers warn those sued would not be able to recover some of the money they spent on their legal defense.

The “unprecedented,” “extraordinary,” and exceptionally broad” language in the bills means “family members, clergy, domestic violence and rape crisis counselors, or referring physicians could be subject to tens of thousands of dollars in liability to total strangers,” nearly 400 Texas lawyers told House lawmakers in an open letter circulated by abortion rights advocates.

In a separate letter, more than 200 physicians said the bill would place doctors “at risk of frivolous lawsuits” and create a “chilling effect” where providers are reticent to give information “out of fear of being sued.”

See here, here, and here for the background, and here for more on what the doctors and lawyers had to say. This Legislature hasn’t been terribly interested in these folks have said about other bills, like the various anti-trans bills, so it’s not likely they were going to make any headway here, but you gotta try. We have known from the beginning of the session that this was coming and it was going to be terrible, and so here we are. Public polls show more opposition than support for this kind of legislation, with a level of confusion thrown in, so while some of this can likely be beaten back in the courts, we are once again at the point of acknowledging that the only action that will matter – that will ever matter – is winning more elections. There’s just not much else to say about it. The Austin Chronicle has more.

Trib polling roundup, part 2

The issues polling is mostly on our side, for what that’s worth.

A solid majority of Texas voters don’t think adults should be allowed to carry handguns in public places without permits or licenses, though the idea is popular with a 56% majority of Republicans. Overall, 59% oppose unlicensed carry — a number driven up by the 85% of Democrats who oppose it. On the Republican side, the gun questions revealed a gender gap. Among Republican men, 70% said they support unlicensed carry; 49% of Republican women oppose that position.

More people carrying guns would make the United States safer, according to 34% of Texas voters, while 39% said that would make the country less safe. Another 16% said more armed Texans would have “no impact on safety.”

Almost half of Texas voters (46%) would make gun laws stricter, while 30% would leave them alone and 20% would loosen them. The partisan lines were sharp: 85% of Democrats would make gun laws stricter, while 53% of Republicans would leave them as they are and another 29% would loosen them. That GOP gender gap appeared again here: 20% of Republican women would make gun laws more strict, while only 10% of GOP men would; 19% of Republican women would loosen those laws, while 41% of GOP men would.

Three-fourths of the state’s voters believe Texas should require criminal and mental background checks before any gun sales, including those at gun shows and private transactions. Only 18% oppose such checks.

“A lot of the [legislative] agenda right now seems at odds with public opinion,” said James Henson, co-director of the poll and head of the Texas Politics Project at UT-Austin. He said Republican lawmakers are pursuing some ideas that “come from the most conservative wing of the majority party.

[…]

Most Texans (54%) oppose automatically banning all abortions in Texas if the U.S. Supreme Court overturns Roe v. Wade — what’s known as a “trigger” law that would take effect in the event of such a ruling — but about a third would support a ban.

Nearly half of the state’s voters (49%) support making abortions illegal after 6 weeks — except in the case of a medical emergency. That includes the support of 74% of Republicans. Among Democrats, 67% oppose the idea.

For all of that, there’s no consensus about changing the state’s current abortion laws: 33% would make them stricter, 33% would make them less strict and 22% would leave them alone. The partisan break is evident in those answers, too: 55% of Republicans would tighten the state’s abortion laws and 63% of Democrats would loosen them.

See here for part 1, and here for polling data. These numbers are consistent with the results we have gotten from UT-Tyler and from Data for Progress. It’s good to get more data, but the bottom line remains that 1) people’s voting behavior doesn’t always line up with their stated policy preferences, and 2) until Democrats start winning more elections in Texas, the Republicans have no incentive to back off from their only-popular-with-the-wingnuts agenda. I think there’s a lot here to campaign on, but that’s just the beginning. There’s a lot of work to be done.

Other May election results

Roundup style, mostly.

San Antonio Mayor Ron Nirenberg easily wins a fourth term.

Mayor Ron Nirenberg

Mayor Ron Nirenberg vanquished the ghost of repeat challenger Greg Brockhouse in Saturday’s City election and secured his third term in office with a win of historic proportion.

Nirenberg is now on course to become the city’s first four-term mayor since his mentor, former Mayor Phil Hardberger, led a successful campaign in 2009 to relax term limits from two, two-year terms to four, two-year terms.

That longevity in office should give Nirenberg the time and space to forge the kind of legacy established by Hardberger and Julián Castro before him.

Hardberger can point to completion of the San Antonio River’s Museum Reach, acquisition of Hardberger Park, redevelopment of Main Plaza, and jump starting the transformation of Hemisfair Park after it lay idle for 50 years. He recruited Sheryl Sculley to become city manager. Her long tenure led to the modernization of the city’s financial practices, ambitious five-year bond cycles to address critical infrastructure needs, and a new level of professional standards for city staff.

Castro, then the youngest mayor of a Top 50 city, led efforts to bring early childhood education to the forefront, well in advance of national trends, with successful passage of Pre-K 4 SA. He launched SA2020 and with it, the Decade of Downtown. Castro joined forces with Sculley to take on the powerful police union and address runaway health care costs. His growing national profile earned him a cabinet seat as Housing and Urban Development Secretary in the Obama administration.

Nirenberg is poised to establish his own legacy. Voters chose him by a 31-point margin, 62% to 31%, over Brockhouse, with the remainder going to a dozen other names on the ballot, a definitive verdict on Nirenberg’s second-term record. A Bexar Facts poll conducted with the San Antonio Report and KSAT-TV in late March accurately predicted as much. The reason: Nirenberg’s strong leadership through the pandemic.

Nirenberg won by a much wider margin against Brockhouse this time. When I look around at current Mayors for future statewide potential, Nirenberg certainly belongs on the list, but for whatever the reason I haven’t heard his name bandied about. Maybe that will change now.

San Antonio had a high-profile ballot proposition, which would have stripped the city’s police union of it collective bargaining power. It was narrowly defeated, but its proponents are encouraged they did as well as they did, and expect to continue that fight.

Austin had its own slew of ballot propositions, with a particularly contentious one that would outlaw the public camps that homeless people are now using. That one passed, and we’ll see what happens next.

The folks behind Proposition B, the citizen initiative to re-criminalize public camping in Downtown Austin and near the UT Campus, got the victory they sought for the more than $1 million they spent. With all votes counted Saturday night, the measure backed by Save Austin Now prevailed by 14 points, 57.1%-42.9%.

That’s a slightly weaker showing than was predicted before polls closed by SAN co-founder Matt Mackowiak, also chair of the Travis County Republican Party, but a win’s a win:

Those who have been paying attention will note that Mayor Steve Adler and much of Council have already decided that the June 2019 vote that Prop B reverses was a failed experiment, and have moved on to other strategies to house Austin’s unsheltered poor. Perhaps SAN will catch up soon. Whatever its merits as policy, the campaign for Prop B did almost certainly boost turnout, which all told was 22.55% countywide (just under 90% of that was city voters). That’s the highest Austin’s seen in a May election since 1994.

Even CM Greg Casar, the politician most directly rebuked by tonight’s results, is looking ahead: “I do not believe Austin is as divided as this election makes it seem. The overwhelming majority of Austinites share a common goal, no matter how folks voted on Prop B. We all want to get people out of tents and into homes,” Casar said in a statement. “Our community must come together after this election & house 3,000 more people.”

I’ll leave it to the Austin folks to figure this out from here, but from my vantage point one obvious issue here is the ridiculously high housing prices in Austin, which is fueled in part by way more demand for housing than supply. I hope the city can find a way forward on that.

Fort Worth will have a new Mayor, after a June runoff.

Fort Worth voters will chose a new mayor for the first time in a decade in June with Mattie Parker and Deborah Peoples apparently headed to the runoff.

Mayor Betsy Price’s decision not to seek an unprecedented sixth term sparked 10 candidates to run, including two council members, the Tarrant County Democratic Party chairwoman and a slew of political newcomers.

According unofficial results in Tarrant County, Peoples, a former AT&T vice president, led with 33.60% of the vote Saturday night while Parker, a former Price chief of staff, had 30.82%, with all 176 vote centers reporting. Council member Brian Byrd was in third place with 14.75%.

Parker and Peoples maintained the upper hand with results for Denton County. There, Parker took 35.17% of the vote compared to 16% for Peoples. In Parker County, Parker had 42% of the vote followed by Byrd’s 23.3%. Peoples had 12.5%.

The runoff will be June 5.

Here are the Tarrant County results – scroll down to page 21 to see the Fort Worth Mayor’s race. There were 1,106 votes cast in total in this race in Denton County, and 176 total votes cast in Parker County, so Tarrant is really all you need to know. In 2019, Peoples lost to Mayor Betsy Price by a 56-42 margin. Adding up the votes this time, counting Ann Zadeh as progressive and Brian Byrn and Steve Penate as conservative, the vote was roughly a 55-42 margin for the Republican-aligned candidates. We’ll see how it goes in the runoff.

And then there was Lubbock.

Lubbock voters on Saturday backed a “sanctuary city for the unborn” ordinance that tries to outlaw abortions in the city’s limits, likely prompting a lawsuit over what opponents say is an unconstitutional ban on the procedure.

The unofficial vote, 62% for and 38% against the measure, comes less than a year after Planned Parenthood opened a clinic in Lubbock and months after the City Council rejected the ordinance on legal grounds and warned it could tee up a costly court fight.

The passage of the ordinance makes Lubbock one of some two dozen cities that have declared themselves a “sanctuary … for the unborn” and tried to prohibit abortions from being performed locally. But none of the cities in the movement — which started in the East Texas town of Waskom in 2019 — has been as big as Lubbock and none of them have been home to an abortion provider.

It’s unclear when the ordinance will go into effect, and if it will be challenged in court.

The push to declare Lubbock a “sanctuary city for the unborn” began in the last two years and was galvanized by the arrival of a Planned Parenthood clinic in 2020. Anti-abortion activists gathered enough signatures to bring the ordinance to the City Council — where it was voted down for conflicting with state law and Supreme Court rulings — and to then put it to a citywide vote.

Ardent supporters of the measure, who liken abortion to murder, say it reflects the views held by many in conservative Lubbock. They believe the ordinance would stand up in court and say they have an attorney who will defend the city free of charge if it is challenged.

But the strategy of bringing the abortion fight to the local level has divided even staunch anti-abortion activists, and Texas towns like Omaha and Mineral Wells have voted down similar ordinances or walked them back under advice from city attorneys.

The American Civil Liberties Union of Texas, which previously sued seven East Texas towns that passed similar ordinances, has said they were watching the vote closely and hinted at a lawsuit in a statement Saturday.

Drucilla Tigner, a policy and advocacy strategist with the organization, said the “ACLU has a long history of challenging unconstitutional abortion bans and will continue to fight to protect the fundamental rights of the people of Lubbock.”

[…]

The Lubbock ordinance outlaws abortions within the city, and allows family members of a person who has an abortion to sue the provider and anyone who assists someone getting an abortion, like by driving them to a clinic.

There isn’t an exception for women pregnant as a result of rape or incest.

The ordinance would not be enforced by the government unless the Supreme Court overturned the landmark Roe v. Wade decision, or made other changes to abortion laws.

It instead relies on private citizens filing lawsuits.

Richard D. Rosen, a constitutional law professor at Texas Tech University, expects someone would sue Planned Parenthood and the legal fight would go from there.

“As long as Roe is good law I think these suits will ultimately fail, but it [could make] abortion providers … expend money for attorneys fees and it takes time,” he said.

See here and here for the background. The lawsuit that was filed against those seven towns was later dropped after the ordinances to remove language that declared the Lilith Fund and the Texas Equal Access Fund “criminal entities”. The language banning abortions in those towns remains, however. Lubbock is in a much different position than those tiny little towns, and I have no idea what happens from here. It can’t be long before someone files a lawsuit for something.

Finally, I’m sorry to report that Virginia Elizondo lost her race for Spring Branch ISD. I wish her all the best in the future.

Poll shows opposition to the extreme anti-abortion bills in the Lege

From the inbox:

Today, the Trust Respect Access coalition is releasing data from polling on abortion laws and anti-abortion bills in the Texas Legislature. The poll includes approval ratings as well as opinions on legislative priorities and House Bill 1515/Senate Bill 8, companion bills that would ban abortion at six weeks gestation, before many people even know that they are pregnant. HB 1515/SB 8 would also allow anyone to sue an abortion provider or anyone who helps someone obtain an abortion.

The poll jointly commissioned by Trust Respect Access partners offers insights by Texans from across the political spectrum. The following are key findings:

Across the political spectrum, Texans are united against extreme proposals

A majority of all respondents – including a majority of ideological subgroups – are opposed to anti-abortion measures currently being considered in the Texas Legislature. These unpopular proposals include HB 1515/SB 8, a six-week abortion ban that would allow out-of-state people to sue Texans who help someone access abortion. HB 1515/SB 8 also includes a “rapist rights” provision that would allow rapists to sue a doctor who performs an abortion on their victim.

It is worth noting that it is rare to see Trump voters, Democrats, and Independents on the same side of an issue – this survey shows that the combined opposition transcends ideology.

“Texans from across the political spectrum are categorically rejecting these extreme anti-abortion measures,” said Diana Gómez, advocacy manager at Progress Texas. “Roe v. Wade is still the law of the land, but extremist politicians are hoping to challenge existing law with dangerous bills like HB 1515 and SB 8. Not only would these bills ban abortion before most people know they’re pregnant, but they would allow for anyone to enforce the rule, meaning a rapist could sue their victim’s doctor and reap a cash reward. Texans deserve better than these attacks on our rights. If passed, these laws would be some of the most extreme abortion restrictions in the country. Texans want our legislators to protect access to essential health care, and that includes abortion.”

Double-digit opposition

Texans have differing ideologies and opinions, but when it comes to the anti-abortion measures currently under consideration at the Legislature, voters expressed opposition by wide margins. In the bipartisan survey, only 33% of respondents identified as Democrats while 68% identified as a Republican or Independent. Even so, the poll found the combined opinions as follows:

Measure to ban abortion: 51% oppose, 36% favor, 12% not sure
Out-of-state lawsuits: 63% oppose, 19% favor, 18% not sure
“Rapists rights”: 76% oppose, 12% favor, 13% unsure
Carrying non-viable pregnancies to term: 64% oppose, 20% favor, 15% unsure

“These polling results reveal that Texans overwhelmingly reject extreme anti-abortion bills,” said Caroline Duble, political director at Avow. “HB 1515/SB 8 is so egregious that it allows ‘any person,’ Texan or not, to sue another person for providing abortion care or helping someone access abortion care. This means that a neighbor could sue a mother for driving their child to an abortion procedure, or a classmate could be sued for giving a friend $20 to help pay for an abortion. The bill is written so broadly that it would even allow rapists to sue their victim’s doctors and loved ones — something that 76% of Texans from across the political spectrum oppose.”

Misplaced priorities by the Legislature

When asked what they think the number one priority should be for the Legislature, the top issue voters chose was ensuring a stable energy grid. That was followed by public schools and healthcare (covid response, hospitals, and vaccines). Texans do not believe that abortion should be a top priority in the Legislature.

“The evidence is loud and clear, Texans want access to safe abortion care,” said Carisa Lopez, policy director for Texas Freedom Network. “For years, data consistently shows that people all over Texas from all-sides of the political spectrum don’t want additional barriers to safe reproductive health care. Legislators need to align themselves with the priorities of the voters who gave them their seat at the legislature. If not, they won’t have that seat for long.”

To emphasize just how distant abortion restrictions are from Texans’ minds, when asked what the Legislature’s top priority should be, 17% responded “not sure” whereas only 10% said abortion regulations. Getting outranked by “not sure” is not good in any poll.

“By trying to ban abortion in Texas, the Legislature is pandering to anti-abortion extremists and ignoring the will of the majority of Texans,” said Drucilla Tigner, Policy & Adocacy Strategist, ACLU of Texas. “Most Texans want our leaders to focus on the real issues they face every day and are tired of elected leaders playing political games. Instead of insisting on banning abortion, the Texas Government should focus on trying to keep the lights on for everyone.”

Black and Brown voters continue leading the way in progress on reproductive rights

When breaking down responses to the poll by race, there is more support for abortion rights and a greater opposition to restrictions amongst Black and Brown Texans in many of the questions.

63% of Hispanic/Latino respondents and 58% of Black respondents say abortion laws should be less restrictive or stay the same, compared to 49% of white respondents. 60% of both Hispanic/Latino voters and Black voters also oppose HB 1515/SB 8’s measure banning abortion compared to 46% of white voters.

“Abortion restrictions disproportionately harm Black Texans and other Texans of color, folks in rural communities and those with lower incomes. Texas legislators are fixated on advancing their political interests rather than fighting for the will of the people,” said Marsha Jones, executive director at The Afiya Center. “Texans want access to safe abortion care and the polls show Texans reject harmful anti-abortion bills like HB 1515/SB 8. This political grandstanding continues to put lives at risk and the weird obsession with the relentless attempts to deny bodily autonomy and healthcare harms the state’s most marginalized populations, especially Black women. If Texas legislators want to focus on abortion legislation, let it be only to ensure the safety of those seeking abortions and increase opportunities for quality care.”

Voters want the state to move on from this issue

By a combined total of 54%, voters say that Texas abortion laws should stay the same or be less restrictive, while only 33% are interested in more restrictions. This is consistent with findings from a Progress Texas poll in March that showed that 52% of Texans generally support abortion rights. If conservatives aren’t listening to the will of the voters, exactly who are they listening to?

“Pushing forward the most extreme abortion bans in the country is a purely political move that is not supported by the majority of Texans,” said Dyana Limon-Mercado, Executive Director of Planned Parenthood Texas Votes. “These bills are part of a nationwide, extremist strategy to ban abortion by pushing access to care completely out of reach. HB 1515/SB 8 would outright ban abortion at six weeks — before many Texans even know they are pregnant — with no exceptions. For decades, politicians who have created medically unnecessary barriers to abortion access have simultaneously ignored the real health needs of every day Texans, such as Medicaid expansion, providing COVID-19 relief or addressing Black maternal mortality.”

Poll results: Full poll results including questions, responses, and crosstabs

The survey was conducted by Public Policy Polling from April 23-24, evenly divided between landline and text message, and includes responses from 593 registered Texas voters with a +/- 4% margin of error.

About Trust Respect Access The Trust Respect Access coalition envisions a Texas where everyone — regardless of their age, income, zip code, gender identity, immigration status, or whether they are incarcerated or detained — has access to all reproductive health care options including abortion.

The coalition includes: ACLU of Texas, The Afiya Center, Avow, Counter Balance, Deeds Not Words, Fund Texas Choice, Jane’s Due Process, Lilith Fund, National Latina Institute for Reproductive Justice, Planned Parenthood Texas Votes, Progress Texas, Texas Equal Access Fund, Texas Freedom Network, West Fund, Whole Woman’s Health, Whole Woman’s Health Alliance, Dr. Bhavik Kumar, and Dr. Ghazaleh Moayedi.

You can see the polling data here. The sample seems reasonable – they reported voting 51-45 for Trump over Biden, and they give Biden a 43/48 approve/disapprove mark. The first abortion-related question asked was “Generally speaking, do you think that laws regarding abortion access in Texas should be more restrictive, less restrictive, or kept the same as current state law?”, and “more restrictive” was the plurality choice, with 33% picking that answer, to 31% for “less restrictive” and 23% for “kept the same”.

We have discussed before the challenges in polling about abortion – while basic attitudes towards Roe v Wade have been remarkably stable over time, you can get a lot of variance in polls by how questions are worded, and people can give answers that may appear to be contradictory. The questions in this poll accurately reflect what is in the bills that have been put forth, and I think the numbers are also an accurate reflection, but it’s important to remember two things. One is that in real life, the side that favors these bills gets a chance to describe them in terms they believe are more accurate (and thus favorable to them), and that will have an effect on how people perceive them. Two, even if people do ultimately reject the premise of these bills even after they are fully informed, that doesn’t mean they’ll vote in a manner that is consistent with that belief. People can and do put a higher priority on other things. Making them care enough about your thing, enough to change their voting behavior, is a tall, tall task.

I say this not to be a bummer, but to be a realist, and believe it or not to be a bit of an optimist for the longer term. The realist says that just because we may have opinion on our side on this issue doesn’t mean we’ll win the next election because of it. It’s more complicated than that, and while there are definitely people we can sway with this kind of argument, we need to be attuned to what is of higher value to them as well. There are two pieces of good news to accompany that. One is that public opinion is on our side of some other hot button issues, like permitless carry and voting restrictions and Medicaid expansion, so we have plenty of options to sway the folks who need to be swayed. The other is that once Democrats do have power in Texas, they can and should feel free to repeal these laws in bulk, for the same reason why the Republicans feel empowered to pass them: For the most part, it’s not what the voters will act on when they next express their preferences. We already know that to be true, and I expect it will still be true when we are in a position to act on it.

More interesting questions from that Matthew McConaughey poll

Let’s try this again.

By 58% to 26%, Texans oppose a bill the House approved — and sent to the Senate Friday — that would allow people to carry handguns without a permit. Last month, opposition was greater — 64% to 23%.

[…]

In two polls by The News and UT-Tyler early last year, a majority of Texas registered voters endorsed a national ban on the sale of semiautomatic assault weapons. This month, that slipped to support by a plurality, 48% for and 33% against.

[…]

At the same time, confidence that elected officials are doing enough to prevent mass shootings has ebbed. In early 2020, not long after Trump, Abbott and Lt. Gov. Dan Patrick mused publicly about possible gun law changes in the wake of the August 2019 slaughters in El Paso and Odessa-Midland, up to 47% of Texans agreed that elected officials were doing enough to avoid repetition of the tragedies.

This month, 38% agreed and 59% disagreed — including 86% of Black people, 65% of Hispanics and 46% of Republicans.

See here for yesterday’s post, here for my blogging on the March poll (I didn’t comment on the gun control aspects of it), here for the April poll data, and here for the March poll data. I cut out a couple of quotes from people about the gun question because I didn’t care about them. I don’t know if the change in the numbers from March are just normal float or perhaps the result of recent Republican messaging, but in either case that’s still a solid majority against the permitless carry bill. Maybe that should be a bigger campaign issue in 2022 than it has been in the past. Lots of other issues to talk about as well, to be sure, but there sure looks to be a lot of upside here.

Nearly half a century after the U.S. Supreme Court in Roe v. Wade established a woman’s right to an abortion, at least in the first three months of pregnancy, a majority of Texans — and Republicans, if barely — said the court should not overturn Roe.

Among all Texas registered voters, 61% said Roe should not be overturned, while 37% said it should be. Republicans split 51%-49% against overturning, as did women, 63%-35%. White evangelicals favored voiding the controversial ruling, 56%-43%

Both GOP-controlled chambers of the Legislature are advancing a half dozen measures to restrict abortion.

In The News and UT-Tyler’s poll, a plurality of Texas registered voters (42%-37%) supported a Senate-passed bill that would ban virtually all abortions once a fetal heartbeat is detected, usually about six weeks into pregnancy, except in medical emergencies. Texas law currently bans abortions after 20 weeks of pregnancy — or up to 22 weeks from the last menstrual period.

Though about two-thirds of Republicans and white evangelicals support the so-called “heartbeat” bill, women narrowly oppose it, 40%-38%, as do Democrats, 47%-31%.

The problem here of course is that heartbeat bills, which have been passed in other states and blocked by the courts, are a direct challenge to Roe. The main point to take away from all this is that voters are often confused on this issue because there’s a lot of jargon and misdirection involved in bills like these.

While a plurality of Texans approve of the overall job Biden is doing as president (48%-41%), a slight majority — 52% — disapprove of his performance at handling immigration at the border. Just 30% approve.

Abbott enjoys a higher job-approval rating among Texans than does Biden: 50% approve, 36% disapprove. But it’s Abbott’s lowest showing in eight tests by The News/UT-Tyler poll since January 2020 — and down from a high of 61% in April 2020. That’s when, near the beginning of the coronavirus pandemic, Texans appeared to rally around his shutdown orders.

Asked if they trusted the leaders to keep their communities healthy and safe during the public health crisis, Texans narrowly said they trust Biden, 51%-44%.

However, a narrow plurality now distrusts Abbott to protect their communities from COVID-19: 46% trust the Republican governor, 47% do not. It’s the first time in six polls that Abbott has sunk underwater on the question. In this month’s poll, he’s especially lost ground among independents (30% trust him, 59% distrust him) and Black people (20% trust, 71% distrust).

You can look at the baseline approve/disapprove numbers in the poll data, they’re on page 2 in each case. Not much has changed since March. The polls included the same questions for Dan Patrick and Ken Paxton, but so many people answered “Neither” to the approve/disapprove question for those two (37% for Patrick, 36% for Paxton), which I interpreted as mostly “don’t know”, that I don’t think there’s much value in those numbers. The main point here is that Biden continues to be above water in approval polling, and as long as that remains the case I believe Dems will have a more favorable climate in 2022 than they had in 2010 or 2014. Whether it’s as favorable as it was in 2018 is a different matter.

As for activities during the pandemic, Texans are more comfortable gathering with friends now: 44% are extremely comfortable, while only 23% felt that way in April 2020.

Texans are not as comfortable, though, being in crowds: 16% are extremely comfortable now, very close to the 15% who said they were extremely comfortable last April.

Sixty percent of Texans say they have been or definitely will be vaccinated against COVID-19, up from 57% last month. An additional 14% say they probably will get immunized. If they all do, as many as 74% could be inoculated, approaching the level many experts say is needed to achieve “herd immunity.” If all the state were Democrats, combining the three responses would produce an 89% acceptance rate, compared with 69% among Republicans and 66% among independents.

Could be worse. Given the data from some national polling, could be much worse. In the end, I think we’ll just have to see where we end up. If we get to over 70% in Texas, I’ll be pretty happy.

Assault on abortion advances in Senate

I have four things to say about this.

The Texas Senate gave initial approval Monday to a half-dozen bills that would restrict access to abortion, including a priority measure that could ban abortions before many women know they are pregnant.

The measures are among the earliest bills to be debated by the full Senate — whose presiding officer, Lt. Gov. Dan Patrick, has given two abortion proposals top billing this session. Each piece of legislation must be voted on again in the upper chamber and then go through a similar process in the House before becoming law.

Senate Bill 8 would ban abortions after a fetal heartbeat has been detected, which can be as early as six weeks, according to a legislative analysis. The bill has an exception for medical emergencies but not for rape or incest.

The bill would also let anyone in Texas sue an abortion provider if they believe they violated state laws, regardless of whether they had a connection to someone who had an abortion or to the provider. A person who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a bill draft.

“We’re setting loose an army of people to go sue somebody under a bill that will likely be held unconstitutional,” state Sen. Nathan Johnson, D-Dallas, said. “They could be sued over and over and over again having to pay $10,000” which is the minimum proposed damages in the bill.

Similar “heartbeat bills” have been passed in other states but have been blocked by the courts.

State Sen. Bryan Hughes, R-Mineola, the lead author of SB 8, said unique legal language in the bill makes him believe it will be upheld. It’s intended to “protect our most vulnerable Texans when the heartbeat is present,” he said.

Senate Bill 9, another Patrick priority, would bar nearly all abortions if the U.S. Supreme Court overturned the Roe v. Wade decision or otherwise altered abortion laws. It would create a possible fine of $100,000 for doctors who perform abortions after the law goes into effect. Sen. Carol Alvarado, D-Houston, said the fine for sexual assault in Texas has a $10,000 maximum.

Other legislation given initial approval Monday would bar later-term abortions in the case of severe fetal abnormalities — closing what the bill’s authors have likened to a “loophole” and forcing people to carry ill-fated or unviable pregnancies to term, according to experts and advocates. Women in that situation would be provided with information about perinatal palliative care, or support services, which they may not have been aware of, the bill’s author said.

Another bill, Senate Bill 394, would bar pill-induced abortions after seven weeks. Guidelines from the Food and Drug Administration approve the use of abortion pills up to 10 weeks. Nearly 40% of abortions performed on Texas residents in 2019 were medication-induced, according to state statistics.

1. I’m sure the anti-choice wingnuts are delighted by all this, but I wonder if any of them have ever said to themselves “Hey, wait a minute, we’ve had total control over the state government in Texas for 20 year. Why are we just getting all of this now, after all this time?” I doubt they have that level of self-awareness, however.

2. Most if not all of this would have been clearly illegal following the Whole Women’s Health ruling, but thanks to Anthony Kennedy’s retirement and John Roberts’ controlling opinion in the Louisiana case where a nearly identical law that had been struck down was tried again, most of the teeth from Whole Women’s Health were blunted, if not extracted. I have no idea what the courts will do under the newer ruling, but let’s just say I’m not optimistic.

3. The law that would allow basically anyone to sue any abortion provider for any reason is going to be a real rainmaker for a certain type of lawyer in this state. The odds that at least one such lawyer will end up running an elaborate grift based on this and eventually get busted for it are basically 100%.

4. In theory, federal legislation could overrule much of this, but there’s basically zero chance of that happening in the current Congress. As is so often the case, the real long-term remedy is Democratic control of Texas’s government. Needless to say, that ain’t gonna be easy. The starter agenda for when we finally get that is getting longer and longer.

The Chron and the Signal have more.

The next frontiers in anti-abortion law

Why not attack the legal system while you’re at it?

Right there with them

Texas lawmakers — pushing to drastically restrict abortion access — have included language in a priority bill meant to make it harder to block the law from taking effect and easier to sue abortion providers.

The provisions seem intended to reshape the legal landscape, while many federal courts stop restrictive abortion laws that have passed out of conservative statehouses.

Proponents of the bill told lawmakers its “unique drafting” could make it the first of its kind that can’t be held up in the courts before it takes effect. But legal experts and abortion rights advocates say the proposals amount to a gambit meant to drive abortion clinics out of business.

“Regardless of how you try to dress up an unconstitutional bill, it is still unconstitutional,” said Elisabeth Smith, chief counsel for state advocacy and policy at the Center for Reproductive Rights.

The proposed bill would strip Texas officials of their typical enforcement role — and open the door for any Texan to sue providers they thought weren’t complying with state abortion laws. By pushing enforcement to the civil court system, anti-abortion activists hope to make it harder to sue state officials to stop an unconstitutional law.

The bill also tries to give state actors immunity from lawsuits.

[…]

Versions of the law have been passed in other states and have all been blocked by the courts, said University of Texas at Austin law professor Elizabeth Sepper.

What’s different in Texas “and what the Texas Legislature is sort of pinning its hopes on — are the procedural maneuvers,” she said.

SB 8 would let anyone in Texas sue an abortion provider if they believe they violated state laws. The person would not have to have a connection to someone who had an abortion or to the provider.

Someone who knowingly “aids or abets” others getting abortions prohibited under state law could also be hit with lawsuits, according to a draft of the bill.

Advocates of abortion rights say the provisions would upend “the judiciary’s check on the Legislature” and could leave doctors — or even families of those who receive abortions — to face harassing and frivolous litigation.

Legal experts also said provisions in the bill represent a big break from how the law normally works.

“It’s an extreme departure from current law that someone [doesn’t have] to be connected to a problem in order to sue,” said David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law.

“It really opens up for almost endless liability, which is one way that the anti-abortion folks, including the Texas Legislature, strategize to shut down abortion clinics,” he said.

Smith said the idea that anyone could sue abortion providers makes a “mockery of the legal system, which requires the person suing to have actually sustained a harm that provides the basis of the lawsuit.”

SB8, one of Dan Patrick’s priority bills, is one of many that have already been passed out of committee. It’s safe to say that most if not all of these bills will be passed because there’s nothing that can stop them other than time or the Republicans themselves choosing not to proceed for whatever the reason. From there, it’s a matter of what the courts will do. We know that Chief Justice John Roberts is a stickler for who does and does not have standing to file lawsuits, but we also know that there are five other SCOTUS justices who don’t believe in reproductive freedom, so it’s anyone’s guess what happens next. I see no reason to doubt that some, probably most, of what’s in these bills will survive. I sure hope I’m wrong about that.

Dan Patrick’s priorities

They haven’t changed. He might have had to shoehorn in a thing or two because he’s not stupid and he knows he had a close call in 2018, but the essence of Dan Patrick is eternal.

Lt. Gov. Dan Patrick on Tuesday unveiled his top 31 priorities for the 2021 legislative session, a mix of newly urgent issues after last week’s winter storm, familiar topics stemming from the coronavirus pandemic and a fresh injection of conservative red meat into a session that has been relatively bland so far.

Patrick said in a statement that he is “confident these priorities address issues that are critical to Texans at this time” and that some of them changed in recent days due to the storm, which left millions of Texans without power. After his top priority — the must-pass budget — Patrick listed his priorities as reforming the state’s electrical grid operator, as well as “power grid stability.”

Patrick’s specific plans for such items remain unclear, however. Almost all of his priority bills have not been filed yet, and the list he released refers to the issues in general terms.

The priorities echo much of the agenda that Gov. Greg Abbott laid out in his State of the State speech earlier this month, including his emergency items like expanding broadband access and punishing local governments that “defund the police.” Fourth on the list is a cause that Patrick himself prioritized recently — a “Star Spangled Banner Protection Act” that would require the national anthem to be played at all events that get public funding.

However, besides the fresh focus on the electrical grid, perhaps the most notable takeaway from Patrick’s agenda is how far it goes in pushing several hot-button social conservative issues. Patrick’s eighth and ninth priorities have to do with abortion — a “heartbeat bill” that would ban abortion once a fetal heartbeat is detected, as well as an “abortion ban trigger” that would automatically ban the practice if the U.S. Supreme Court overturned Roe v. Wade.

Abbott said he wanted to further restrict abortion in his State of the State speech but did not mention those two proposals specifically.

Abortion is not the only politically contentious topic on Patrick’s list. As his 29th priority, Patrick put “Fair Sports for Women & Girls,” an apparent reference to proposals that would ban transgender girls and women who attend public schools from playing on single-sex sports teams designated for girls and women. He also included three items related to gun rights: “Protect Second Amendment Businesses,” “Stop Corporate Gun Boycotts,” and “Second Amendment Protections for Travelers.” It was not immediately clear what specifically those three bills would entail.

Coming in at 10th is another proposal that was left unmentioned in Abbott’s speech despite popularity with the GOP base: banning taxpayer-funded lobbying. That is considered one of the big pieces of leftover business for conservatives after the 2019 session.

You can see the list here. And yes, that Star Spangled Banner Protection Act slots in at number 4, behind the budget (the one bill the Lege is required to pass) and the two hastily-added power grid items. Which means that in the absence of last week’s freeze and blackouts, that would have been Dan Patrick’s top legislative priority. And that, even before you get to the rest of the garbage on his list, tells you all you need to know about Dan Patrick.

Actually, there is one more thing to point out. Note that tenth item, about the capability for cities and counties and school districts to hire lobbyists to advocate for their issues at the Legislature. As we have discussed, the power companies have plenty of well-paid lobbyists at the Capitol representing their interests. Those lobbyists are funded by your power bills. Dan Patrick is just fine with that. This is what he’s about. The Chron has more.

Abortion’s going to get more illegal

It’s just a question of how much.

Republican lawmakers, buoyed by a conservative majority on the U.S. Supreme Court and the trouncing of state-level Democrats in the November election, are pushing to reclaim Texas’ role as the vanguard among states restricting access to abortion this legislative session.

Legislators have promised to back a so-called “heartbeat bill” that would bar abortions before many women know they are pregnant. Anti-abortion advocates have urged them to challenge the Roe v. Wade decision that established the right to an abortion. And Republican Gov. Greg Abbott said at a “Texas Rally for Life” event in January that there is more “we must do to defend the unborn.”

With the GOP in control of state government and “a favorable backstop from the courts, it’s going to be a no-holds-barred approach for Republicans on abortion,” said Brandon Rottinghaus, a political science professor at the University of Houston.

They’re wasting no time.

On one of the first days of the session, a freshman lawmaker attempted to stop the House from naming bridges or streets without first voting to abolish abortion. The amendment failed, but was supported by more than 40 lawmakers, about half of the Republicans in the House.

At a committee hearing in December, state Sen. Bryan Hughes, R-Mineola, who chairs the powerful Senate State Affairs committee, said 10 states had already passed “heartbeat bills” and it was time for Texas to catch up.

And on Jan. 22 — 48 years after the landmark Roe v. Wade decision — two “trigger” bills were filed that would ban abortion in Texas if the Supreme Court overturned the case or otherwise altered abortion laws. Another bill could ban abortion after 12 weeks.

I mean, they have the votes, they believe they have the mandate since they didn’t lose a bunch of seats, and they believe the Supreme Court will basically let them do whatever they want. What did you expect?

Planned Parenthood not booted from Medicaid yet

A (likely very) temporary reprieve.

It’s constitutional – deal with it

Responding to an emergency lawsuit filed hours earlier, a Travis County judge issued an order Wednesday blocking Texas from removing Planned Parenthood as a Medicaid health care provider beginning Thursday.

The 14-day temporary restraining order, granted by state District Judge Maya Guerra Gamble after a brief hearing Wednesday afternoon, allows Planned Parenthood to continue providing health care to about 8,000 low-income Texans.

The judge also set a Feb. 17 hearing to determine whether a temporary injunction should be issued to keep Planned Parenthood in Medicaid.

In its lawsuit, Planned Parenthood argued that state officials did not follow the legally mandated process for kicking its health clinics out of Medicaid. Wednesday was supposed to be the final day Planned Parenthood clinics could receive Medicaid reimbursement for care that can include contraceptives, cancer screening and testing and treatment for sexually transmitted infections, but not abortions.

[…]

Planned Parenthood’s lawsuit argued that the termination letter did not comply with state law, including requirements that reasonable notice, and an opportunity for a hearing, be given.

The organization is seeking a court order blocking its removal until it exhausts all available administrative protests and appeals.

Texas officials, however, have argued that Planned Parenthood’s attack on the Jan. 4 notice of termination was misguided because a notice sent in January 2016 — kicking off years of litigation — complied with all necessary state laws and Medicaid regulations.

As the story notes, this has been going on since 2015. The state officially gave notice to Planned Parenthood patients that they needed to find a new doctor on January 5. I didn’t blog about it then because it was too depressing, and we know what else was going on at that time. It was a Fifth Circuit ruling that allowed the state to take the final steps in this process, so I don’t expect there to be much future to this litigation. Even the argument being made is just to buy time, as there are no questions of law remaining. You know my mantra: until we start electing different people to office, nothing is going to change. The Trib and the Chron have more.

Endorsement watch: The Susan Collins of Texas

Three things in life are certain: Death, taxes, and certain Chron endorsements.

Rep. Sarah Davis

The voters in state House District 134 — a swing district that covers all or parts of River Oaks, Bellaire and Meyerland and includes the Texas Medical Center — face a tough choice in the Nov. 3 election.

Five-term Republican incumbent Rep. Sarah Davis and Democratic challenger Ann Johnson are both well-qualified, skilled communicators whose many talents would serve them well in the Legislature.

We recommend Davis, 44, based on her experience, growth in office and independence.

A rare Texas Republican who supports abortion rights, she has moved from the tea party positions of her first 2010 victory to embrace the Affordable Care Act provisions of Medicaid expansion and coverage of pre-existing conditions as well as bucking her party on other issues.

[…]

Johnson has stressed her policy differences with Davis on immigration and gun control, where the incumbent is more in line with the GOP. Johnson has criticized Davis’ vote to let school districts arm teachers and to require universities to permit guns in campus parking lots and her sponsorship of a “show me your papers” bill to allow local law enforcement officials to ask about immigration status.

Those are not measures supported by the editorial board.

And yet. In the same way that the Chron endorsed Orlando Sanchez for Treasurer in four straight elections, so have they endorsed Sarah Davis consistently since 2012. Look, if you want to believe that Sarah Davis is a force for good for reproductive rights and LGBTQ equality and even expanding Medicaid, I can’t stop you. I happen to think that campus carry and “sanctuary cities” legislation are indelible stains on her record, but you do you. My opinion is that it’s better to maximize the odds of a Democratic House than to depend on a singular Republican savior. Your mileage may vary.

(Where the post title came from.)

Why endorse Sarah Davis?

It’s a good question.

Rep. Sarah Davis

Planned Parenthood’s Texas political arm on Thursday endorsed state Rep. Sarah Davis, rebuffing abortion rights activists who had lobbied the group to deny political support for the Houston Republican.

The efforts to deny Davis the endorsement had revolved around a petition circulated by Sherry Merfish, a deeply connected Democratic donor and former Planned Parenthood board member. The petition concedes that Davis “may have met the minimum standards of what it means to be ‘pro-choice,’” but argues that “the rest of her record stands completely at odds with the cause of reproductive justice and the purported mission of Planned Parenthood.”

It had gathered some 450 signatures by Wednesday afternoon, including numerous Planned Parenthood donors and two board members of the group’s Houston affiliate. One of the board members, Peggie Kohnert, had circulated her own petition.

The lobbying effort has revealed a fracture between key members of Houston’s abortion rights community and the leaders of Planned Parenthood Texas Votes, a political action committee that defines itself as nonpartisan but has struggled to find Republicans like Davis to endorse. As the debate plays out, Texas Democrats — desperate to capture a House majority before next year’s critical redistricting battle — are making an all-out push to unseat Davis, whom they view as one of the most vulnerable Republican legislators in the state.

Davis’ stances on abortion have angered members of her party but helped garner support from moderate voters. In the last two cycles, she won re-election while her party’s standard-bearers, Donald Trump and Ted Cruz, each failed to crack 40 percent in her district.

Houston lawyer Ann Johnson, Davis’ Democratic opponent, argues the incumbent has worked against women’s reproductive issues by opposing the Affordable Care Act and declining to vote for the law’s optional expansion of Medicaid. Davis disagrees, saying she has voted against “every anti-choice bill” during her time in office.

Some of Johnson’s supporters say groups such as Planned Parenthood Texas Votes have allowed Davis to carefully curate her moderate reputation while she aligns with her party on immigration and gun policies. Merfish said the group also would paint a misleading picture of Johnson by backing Davis.

“By endorsing Sarah, in people’s minds who may not be as familiar with Ann, it would cast doubt on whether Ann is aligned with them on these issues,” Merfish said. “Because, then why wouldn’t they endorse both of them, or why wouldn’t they stay out of it?”

Planned Parenthood Texas Votes announced the Davis endorsement Thursday as part of a slate of 18 new endorsements. Davis is the only Republican among the 27 candidates the group is backing this cycle.

In a news release, Planned Parenthood Texas Votes said it is “working to elect officials not to just defend access to sexual and reproductive health care, but to repair and expand the public health infrastructure damaged by Governor Abbott and other extremist politicians.”

There was a preview story about this on Wednesday, which covered much of the same ground. As the story notes, Davis also received the endorsement from the Human Rights Campaign, despite Ann Johnson being an out lesbian. The story goes into a lot of detail about Davis’ career and various votes and issues that are at the heart of the dispute, so I encourage you to read the rest.

On the one hand, I get why PPTV and the HRC want to endorse Republicans like Davis, who are an increasingly rare breed. It’s in their best interests, at least as they see it, to be non-partisan, which means they need to find Republicans they can support. From a national perspective, Democrats may be the majority in Congress now, but partisan control is likely to swap back and forth over time, and you need to have some connections to the Republican majority when it exists, no matter how otherwise hostile it is, because you can’t afford to be completely shut out. Long term, I’m sure groups like these very much want for their issues to not be seen as strictly partisan, but to have broad consensus across party lines, and the only way to do that is to have Republican faces you can point to and say “see, they support us, too”. They have done this for a long time, and it’s just how they operate.

On the other hand, the simple fact of the matter is that having Sarah Davis in the State House makes it that much more likely that the Republicans will maintain their majority in that chamber, and a House with a Republican majority and a Republican Speaker is absolutely, positively, one hundred percent going to pass at least one major anti-abortion bill in 2021, just as it has every session since 2003, when the Republicans first took the majority and thus gained trifecta control of Texas state politics. A State House with a Republican majority and Speaker will absolutely not pass a bill to expand Medicaid. I agree, such a bill would almost certainly be DOA in the Senate, but at least it would get there, and the voters in 2022 would have a tangible example of what they’ve been missing out on. And of course, a State House with a Republican majority and Speaker will absolutely make further cuts to women’s health (which is already happening without any legislative input) and add further restrictions to Planned Parenthood, again as they have been doing for years now. All of this would happen regardless of the virtuous votes that Sarah Davis would cast. I mean, it may be true that she has helped stop some things and reverse some cuts and spoken against some other things, but all this has happened regardless. She’s only one member, and they have always had the votes to do all that without her.

This debate has played out for several years at the national level, with the national Planned Parenthood PAC being criticized in the past for supporting the likes of Arlen Specter and Susan Collins and a handful of Congressional Republicans for their reasonably pro-choice voting records while overlooking the “which party is the majority” aspect. Indeed, for the first time ever, Planned Parenthood has endorsed Collins’ challenger, with her vote for Brett Kavanaugh being the proverbial last straw. Activists, including blogs like Daily Kos, have made the same argument about control of the chamber versus individual members with acceptable voting records. However you feel about what PPTV and HRC did here, it’s not at all a surprise to see this debate arrive here on this level.

Ann Johnson

Though individual endorsements rarely have the power to swing elections, Planned Parenthood Texas Votes holds more sway in House District 134 than the average political group, said Renée Cross, senior director of the Hobby School of Public Affairs at the University of Houston. The district, which covers Bellaire, West University Place, Southside Place, Rice University and the Texas Medical Center, is home to some of the most affluent, educated and politically engaged voters in the state and contains what Merfish described as a “trove of Planned Parenthood voters.”

The group’s endorsement is particularly significant for Davis, Cross said, because of President Trump’s struggles among suburban women.

“Just like the tea party helped bring her in back in 2010, the anti-Trump movement could help move her out, especially among women,” Cross said.

I agree that Davis is better positioned with these endorsements than without them. A bigger concern for Davis is just simply how Democratic HD134 was in 2018, when Beto took 60% of the vote, and Davis was fortunate to not have had a serious challenger. I see a parallel to Ellen Cohen, who won re-election in 2008 by a 14-point margin over a non-entity opponent, even as Republicans were carrying the district in nearly every other race. 2008 was a strong Democratic year overall in Harris County, but HD134 was actually a bit more Republican than it had been in 2006, when something like seven or eight downballot Dems also carried the district. Cohen still vastly outperformed other Dems in the Republican tidal wave of 2010, but that wave was too big for her to overcome. I get the same feeling about Davis this year. Maybe I’m wrong – no two elections are ever alike, and HD134 has been a Republican district far longer than it’s been a Democratic district – but there’s a reason why neutral observers view Davis as being endangered.

One last thing: When I say that groups like PPTV and HRC want to be supportive of Republicans like Sarah Davis, it’s because there’s literally no other Republicans like Sarah Davis, at least at the legislative level in Texas. The thing is, Republicans like her have been extremely endangered for some time now. Go ahead, name all of the Republican legislators you can think of from this century that you could classify as “pro-choice” with a straight face and without provoking a “no I’m not!” response from them. I got Joe Straus, Jeff Wentworth (primaried out by the wingnut Donna Campbell), and that’s about it. I’m old enough to remember when Gary Polland and Steven Hotze ousted Betsy Lake, the nice River Oaks Planned Parenthood-supporting lady who had been the Harris County GOP Chair in the 90s, thus completing a takeover of the party that has lurched ever further rightward since. If they can’t support Sarah Davis, I have no idea who else in the Republican Party they could support.

SCOTUS declines to outlaw abortion for now

You may have heard about this from the other day.

Right there with them

The U.S. Supreme Court struck down a Louisiana law Monday that would have curtailed access to abortions in the state and that was nearly identical to a measure the court overturned in Texas in 2016.

The ruling is a win for advocates of abortion access, who feared the case could quickly pave the way for states to impose greater restrictions on the procedure. But legal and legislative battles over the procedure are sure to continue, including in Texas, where there are more than 6 million women of reproductive age. More than 53,800 abortions were performed in Texas in 2017, including 1,1,74 for out-of-state residents, according to government data.

Chief Justice John G. Roberts Jr. joined the liberal justices in a 5-4 decision that struck down a Louisiana law that would have required doctors who perform abortions to have admitting privileges at a nearby hospital. Roberts had dissented in the 2016 decision that found Texas’ restrictions placed an undue burden on a woman’s constitutional right to an abortion. He did not agree with the liberal justices’ reasoning Monday, instead citing the precedent set by the previous case.

“The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts wrote.

[…]

While advocates for abortion access celebrated the ruling, they expressed worry about future fights over the procedure.

“We’re relieved that the Louisiana law has been blocked today, but we’re concerned about tomorrow,” said Nancy Northup, head of the Center for Reproductive Rights, a nonprofit that represented the Louisiana abortion providers. “Unfortunately, the court’s ruling today will not stop those hell bent on banning abortion.”

See here for a bit of background. I hate to be the party pooper, but after reading what Dahlia Lithwick has to say, I’m going to keep any celebrations of this ruling to the minimum.

Roberts’ concurrence is classic Roberts—cloak a major blow to the left in what appears to be a small victory for it. Four years ago in Whole Woman’s Health, the court struck down the Texas admitting privileges law by assessing that such a law would constitute an “undue burden” on a woman’s right to terminate a pregnancy—a standard that in Justice Stephen Breyer’s formulation called for a careful balancing of the stated benefits of an abortion restriction against its burdens. Reading Roberts’ concurrence carefully, one sees that in June Medical, he managed to claw back that standard, replacing it with a much more deferential one that asks only whether the proposed regulation is unduly burdensome without requiring any consideration of the benefit. Not only that, he goes further and does essentially what he did in last year’s census case and last week’s challenge to the DACA rescission: He hints that essentially any old pretextual defense of an abortion law will serve; he just doesn’t like when lazy litigants offer up sloppy pretexts.

The problem for Roberts in June Medical is that the state of Louisiana offered up demonstrably bad reasons for insisting on admitting privileges for abortion providers at local hospitals, and then the 5th U.S. Circuit Court of Appeals offered up sloppy reasons for disturbing the findings of the trial court showing that two out of three clinics would close and women would be burdened. As was the case in the census litigation, and the DACA litigation, the outcome here is correct, but one can easily reverse-engineer the chief justice’s opinion to say, “Come back to me with the right road map and I’m all yours,” and in fact, he actually grabs your pencil, flips over the napkin, and sketches the map out at no extra cost.

As Mark Joseph Stern and I wrote this time last year, “Lie better next time” could easily be the holding of June Medical, and states seeking to restrict abortion rights can now do precisely that, without running afoul of this ruling, so long as they ground the laws in better pretextual arguments about maternal health and fetal life and women’s need to make better choices. Roberts has turned a substantive constitutional right into a paper-thin debate about regulatory justifications. His scrupulous review of the many abortion restrictions that were permitted in Casey is a useful reminder that nothing is truly an “undue burden” if it comes dressed in the right language of solicitude and benign concern for mothers’ healthy choices. After today, Roberts is telling states wanting to impose all sort of needless regulations that it doesn’t matter if they are utterly without health benefits, so long as the burdens on women are not that bad.

Mark Joseph Stern arrived at a similar conclusion earlier. It was correct to throw out this ridiculous Louisiana law, but the door is still very much open for a similar law to flip Roberts back to his natural inclination. It’s just a matter of time. Mother Jones has more.

Pro-choice groups sue that “abortion sanctuary cities” guy

Good.

Three abortion support organizations – The Lilith Fund, the Texas Equal Access Fund, and The Afiya Center – are hitting back at anti-choice activist Mark Lee Dickson and the group he leads, Right to Life East Texas.

Those two are now the defendants in a defamation lawsuit, after labeling the pro-choice groups “criminal” and spewing lies about abortion care to – in their eyes – purposely “confuse, intimidate, and dissuade” abortion-seeking women in Texas. Dickson and Right to Life are behind the string of abortion bans passed recently by small Texas towns, many of which were also sued earlier this year by the ACLU of Texas.

“With this lawsuit, we are saying enough is enough,” said Marsha Jones, executive director of the Afiya Center, a reproductive justice group that addresses the health disparities black women and girls face. “We have been at the hands of those seeking to distort our purpose by damaging our standing in the community. Going after organizations like ours will not stop us from helping black folk; it will only cause confusion in our communities and create barriers to people seeking abortion care. The women that we serve have already been marginalized and disenfranchised and we are saying enough already. To be labeled as a ‘criminal entity’ presents a clear and present danger to the life of this organization.”

[…]

In February, the ACLU of Texas, representing the Texas Equal Access Fund and the Lilith Fund, filed suit against seven towns that passed the ordinance, arguing they violated pro-choice advocates’ First Amendment rights. By ideologically designating those groups as criminal entities, the towns are illegally imposing punishment without a fair trial, they argued. By May, the ACLU dropped the lawsuit after the cities backed down and revised ordinance language to stop calling such groups “criminal.”

Even with that partial victory, the plaintiffs believe a lot of damage is already done. They want to make sure Dickson and Right to Life East Texas are held accountable for disrupting and confusing communities who have a right to abortion care. Though the cities themselves have amended their ordinances, Dickson and his group continue in defamatory conduct as they “refuse to stop lying and refuse to correct the false record,” attorneys write in legal challenges filed today. (Afiya and TEA have filed suit in Dallas County while the Lilith Fund filed in Travis County district court.)

“The Lilith Fund has been defamed because Defendants have falsely accused it of assisting in the commission of the specific crime of murder,” the suit reads. “Ultimately, defamation is the purpose of the ordinance; Dickson’s campaign is designed to confuse people about the legal status of abortion and abortion advocacy, and paint abortion rights organizations like the Lilith Fund as criminals.”

See here and here for the background. Accusations of criminal activity, when done with malicious intent, is not protected speech. I look forward to these groups taking that guy to the cleaners. KUT, the Dallas Observer, and this TEA Fund Twitter thread have more.

Abortion clinics say “ban’s over, we’re back”

I’m sure this will be left alone.

Right there with them

Texas clinics resumed offering abortions Wednesday after a strict bar on nonessential medical procedures was loosened at midnight.

The ban on nearly all abortions in Texas has been the subject of weeks of litigation — starting in late March when the governor postponed all surgeries not “immediately medically necessary” to preserve medical resources for coronavirus patients. Attorney General Ken Paxton said the ban extends to abortions, and the politically conservative 5th U.S. Circuit Court of Appeals has largely sided with state officials.

The legal fight is ongoing. Abortion providers have accused state officials of political opportunism, saying abortions rarely result in hospitalization and require little or no protective equipment.

A new order from Republican Gov. Greg Abbott that took effect Wednesday allows more procedures to resume in health care facilities that agree to reserve a certain number of beds for coronavirus patients and to refrain from seeking scarce protective equipment from public sources.

Abbott demurred when asked last week if abortions could proceed under his latest directive, saying it was a decision for the courts and “not part of this order.”

But abortion providers said Wednesday that they meet the criteria he laid out.

See here and here for the background. I assume this will wind up in court again, and the main question will be what ridiculous justifications the Fifth Circuit will come up with to agree with the state’s position. Until then, this is where we are today.

UPDATE: It appears that the state has agreed that the expiration of the order means that there is no further restriction on abortions. So that’s a relief.

Fifth Circuit flips off abortion rights again

I’m so sick of this shit.

Right there with them

A federal appeals court has again banned most abortions in Texas amid the coronavirus pandemic, though the ruling will only be in effect for two days.

The ruling on Monday by the Fifth Circuit Court of Appeals prohibits medication and surgical abortions for nearly all women except those nearing the state’s 22-week legal gestational limit to obtain one. The court had ruled last week that medication abortions could proceed.

But the court’s ruling will expire Tuesday night.

Republican Gov. Greg Abbott issued a new order loosening restrictions on nonessential surgical procedures — presumably including abortions — starting Wednesday, though neither he nor Attorney General Ken Paxton have clarified how abortions will be impacted.

Abbott’s original order restricted procedures to only those that require “immediate” response to protect a life or serious adverse medical outcome. The new order replaces “immediate” with “timely.” Physicians are left to determine whether the criteria is met.

Paxton has no plans to clarify how the new order applies to abortions, according to a spokeswoman. He has previously threatened criminal action against doctors who perform them during the ban.

In its ruling, the Fifth Circuit said medication abortions use masks and other critical protective gear needed for frontline doctors to respond to the coronavirus crisis. Abortion providers are required to meet with patients before and after providing them pills to terminate a pregnancy, the court wrote, and should be wearing protective gear during those visits.

“The question, then, is not whether medication abortions consume (personal protective equipment) in normal times, but whether they consume PPE during a public health emergency involving a spreading contagion that places severe strains on medical resources,” it wrote.

It was one week ago that the court allowed medical abortions to continue, so if you’re feeling some whiplash, you’re not alone. It boggles my mind that restrictions could be re-imposed by the court at a time when they are being eased up by the state, but that’s Fifth Circuit logic for you. What happens tomorrow when this order expires? Who the hell knows? It’s been bullshit from beginning to end. If we ever want to get off this demonic roller coaster, it’s going to require a new Governor and a new Attorney General, at the very least. The Trib has more.

Abbott and Paxton continue to play politics with abortion

This is exactly the problem with that Fifth Circuit ruling.

Right there with them

Though Gov. Greg Abbott loosened a ban on nonessential surgeries, he said Friday it would be up to courts to decide if his order restores access to abortions — the subject of a weekslong legal brawl — as the state continues to combat the coronavirus pandemic.

“Ultimately, obviously that will be a decision for courts to make,” Abbott said, adding, that an allowance for abortion is “not part of this order. The way that the order is written is in terms of what doctors write about the type of treatment that is provided.”

The Republican governor issued an order last month barring medical procedures that are not “immediately medically necessary” to preserve protective equipment and hospital beds for coronavirus patients. His directive extends through April 21 and Abbott said Friday the restrictions would be relaxed starting April 22.

But Attorney General Ken Paxton has declared Abbott’s first order applies to all abortions except those needed to protect the life or health of the woman. The near-total ban prompted a lawsuit from abortion providers, who accused state officials of political opportunism and argued the procedure does not usually require hospitalization nor extensive protective gear.

See here for the last entry. This is exactly what I meant when I said that if all it takes is a declaration of an emergency for the state to shutter abortion clinics, then there is no right to abortion in Texas and the law as it now exists is a sham. Abbott is on the one hand saying that we can start easing up on shutdown orders and we have plenty of hospital capacity (not that abortion has anything but a negligible effect on that), but hey, it’s not up to him to decide whether any of this means that reproductive health care can go back to its usual business even if other medical services that are deemed “non-essential” can resume. It’s cynical and chickenshit on his part, and it again shows that there has to be some kind of consistency. And it again shows why the Fifth Circuit sucks.

Fifth Circuit allows medical abortions to proceed

Well, this is a pleasant surprise.

Right there with them

A federal appeals court on Monday blocked Texas from enforcing a ban on medication-induced abortions as part of the state’s curbs on certain medical procedures during the coronavirus pandemic.

As a result of fast-moving litigation over Texas’s abortion restrictions, women seeking to terminate an unwanted pregnancy may do so through the use of medicine, but only women nearing their 22nd week of pregnancy may undergo a surgical abortion.

In its Monday ruling, the 5th Circuit Court of Appeals said it sided against Texas because it was unclear if the state’s public health order halting nonessential medical procedures applied to medication-induced abortions.

“[Abortion providers] argue that medication abortions are not covered by [the order] because neither dispensing medication nor ancillary diagnostic elements, such as a physical examination or ultrasound, qualify as ‘procedures,’” the three-judge panel wrote.

“Given the ambiguity in the record, we conclude on the briefing and record before us that [Texas officials] have not made the requisite strong showing [necessary for] relief,” the panel said.

The panel’s decision partially reinstates a lower court ruling that limited the Texas health order’s impact on abortions.

Following the 5th Circuit’s ruling, abortion providers on Tuesday withdrew an application submitted to the Supreme Court over the weekend that had asked the justices to intervene.

See here and here for the background. It’s still far less than great, in that it accepts the premise that abortions aren’t essential health care and can be routinely delayed for political reasons, but at least it recognizes that dispensing medication is in no way a threat to the supply of PPEs. From this godforsaken court, that counts as a ringing victory. SCOTUSBlog and the Trib have more.

And so we go to SCOTUS

Pardon me while I gird my loins for whatever happens next.

Right there with them

Texas abortion providers have taken a back-and-forth legal battle with the state of Texas over its temporary ban on the procedure to the U.S. Supreme Court.

The groups on Saturday requested an emergency stay from the high court, asking that it overturn a federal appeals court decision and allow medication-induced abortion services, and surgical abortions in limited circumstances, while the case proceeds.

The request comes amid the longest period that women in the state have ever been without access to abortion since the landmark 1973 Roe v. Wade case that legalized the procedure, as the more than two-weeklong legal saga continues.

The battle began when Gov. Greg Abbott on March 22 banned elective surgeries during the coronavirus state of disaster in a move intended to conserve personal protective equipment needed to fight the pandemic, and the groups quickly filed suit. The Texas Attorney General Ken Paxton, who is representing the state, did not immediately respond to a request for comment Saturday.

The state has argued that personal protective equipment would still be needed with medication abortions and that those could even require hospitalizations if complications followed. Paxton said in an interview with CBS on Wednesday that he figured that the case would rise to the nation’s highest court.

Legal battles are brewing in several other states where abortion rights groups have sued over similar bans, including Alabama, Ohio and Oklahoma, but Texas’ case is the first to reach the Supreme Court.

See here for the previous update. It’s possible that SCOTUS will react the way they did following the recent Louisiana case where that state passed an anti-abortion law nearly identical to the one SCOTUS had struck down from Texas in the Whole Women’s Health decision, with the message going to the Fifth Circuit that “you don’t get to overturn Roe v Wade, only we get to do that” (hat tip to Dahlia Lithwick for the concept). If that’s the case, they’ll allow the hold on the executive order to stay in place until they can rule on the issue, in which case they have whatever rein they want to restrict abortions. I mean, let’s be clear, if all it takes to shut down clinics across the state is for the governor to declare a state of emergency, then what’s stopping him from declaring a permanent state of emergency? Or at least saying that until there’s a broad-based coronavirus vaccine that meets whatever arbitrary standard of effectiveness that Texas would choose, all such restrictions must stay in place? A right is not a right if it can be revoked on a whim, and there has to be some clear and compelling reason for it to be restricted in the first place. We’ll see what SCOTUS makes of this, but we need to be prepared for some bad news.

Do I need to tell you that the Fifth Circuit did it again?

I’m going to tell you anyway, because it’s what happened.

Right there with them

In the latest turn of a whiplash-inducing federal court battle over Texas GOP officials’ near-total ban on abortion during the novel coronavirus outbreak, a federal appeals court on Friday once again lent support to state officials and prohibited the procedure under all but a few narrow circumstances.

For now, the higher court said, the only patients who may terminate their pregnancies in Texas are those who would pass the legal gestational limit for abortions while a gubernatorial emergency order barring elective medical procedures remains in place. The news comes just a day after a federal district judge in Austin ordered that those patients, as well as others planning to undergo “medication abortions,” which involve ingesting pills, should be permitted to terminate their pregnancies as planned.

Texans bans abortions starting 22 weeks after a patient’s last menstrual period, meaning some patients would have been unable to terminate their pregnancies at all.

Providers said the newest order from the federal appeals court makes abortion “largely inaccessible” and said they will weigh every legal option — including seeking emergency relief from the U.S. Supreme Court.

“The court is unjustifiably forcing women to wait until the 11th hour to get the time-sensitive, essential healthcare that they are constitutionally guaranteed,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We will pursue all legal options to ensure no women are left behind.”

Already, hundreds of patients have seen their planned abortions disrupted, and providers have been thrust into uncertainty as the legal status of the procedures they perform has changed as many as three times during a single week.

The litigation is far from complete, with deadlines as soon this weekend for attorneys on both sides of the case to make more arguments before the court.

See here for the previous update. Someone whose galaxy brain is bigger than mine is going to have to explain to me the rationale for banning medication abortions, since as far as I can tell that imposes no burden on the healthcare system. I don’t know what else there is to say. The Chron has more.

Abortion ban partially lifted

Here we go again.

Right there with them

In a second rebuke to Texas GOP officials who have said a ban on nearly all abortions is essential as the state battles the novel coronavirus, a federal judge in Austin ruled Thursday that some abortions may proceed.

U.S. District Judge Lee Yeakel narrowed Texas’ prohibition to allow certain abortions to proceed while a gubernatorial emergency order barring medical procedures that are not “immediately medically necessary” still stands. The ruling will allow Texas abortion providers to proceed with medication abortions — which involve patients ingesting pills and do not consume scarce medical protective equipment — as well as procedural abortions for patients who risk meeting the state’s gestational age cutoff for abortions before Gov. Greg Abbott’s emergency order is lifted.

[…]

Abbott’s emergency order is set to expire later this month, but it may be extended as the state prepares for a peak in coronavirus cases that may not come for weeks. In Texas, abortions are prohibited starting 22 weeks after a patient’s last menstrual period — meaning even if Abbott’s order lifts in April, patients who wait might not have the opportunity to obtain a legal abortion in Texas at all.

U.S. 5th Circuit Judge Kyle Duncan had said the order was best understood not as an “absolute ban” but as a “temporary postponement” in line with delays for many medical procedures, like colonoscopies. But Yeakel argued that because abortions, unlike colonoscopies, are time-limited, “to women in these categories, the executive order is an absolute ban on abortion.”

See here for the last update. If you’re feeling a little whiplashed, I understand. I also caution you to hold on, because this revised restraining order is headed right back to the Fifth Circuit, where we will see if this is what they had in mind, or if they move the goalposts again. I’m not making any predictions. The Chron has more.

The Fifth Circuit sticks the shiv the rest of the way in

The worst court in the country does its thing again.

Right there with them

A New Orleans-based federal appeals court will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic.

Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients.

Citing precedent from the U.S. Supreme Court, U.S. Circuit Judge Kyle Duncan, an appointee of President Donald Trump, wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times.”

“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.

U.S. Circuit Judge James Dennis, appointed to the court by Bill Clinton, dissented.

Abortion providers have characterized the state’s lawsuit as political opportunism. Most abortions do not take place in hospitals, and according to providers, they generally do not require extensive personal protective equipment, like the masks and gloves in short supply for doctors and nurses fighting COVID-19.

[…]

Duncan said Yeakel was wrong to characterize Abbott’s order as an outright ban on abortions.

“Properly understood,” he wrote, the executive order is a “temporary postponement” of many procedures, like colonoscopies.

But Texas bans abortions after 20 weeks, meaning prohibiting the procedure for any length of time leaves many patients unable to terminate their pregnancies at all. Abbott’s order is set to expire April 21 but can be extended.

The case now heads back to federal court in Austin, where a hearing is scheduled next week. The 5th Circuit had already paused Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely.

Further litigation is all but guaranteed. States including Ohio, Oklahoma and Alabama have imposed bans similar to Texas’, and similar lawsuits are playing out across the country.

See here for the background. I don’t know why there’s any pretense that the Fifth Circuit is an unbiased arbiter of the law. They rubber-stamp these appeals on the flimsiest of pretexts. I don’t know if they honestly believe there’s no difference between an abortion and a colonoscopy or if they just think we’re too stupid to understand the difference. The sheer arrogance of it is breathtaking. If Democrats manage to beat Trump and take the Senate in November, I’d be in favor of appointing about a hundred new judges to this court, to ensure as best as possible there’s never another Republican majority on any three-judge panel. This crap cannot continue.

The Fifth Circuit does what the Fifth Circuit always does

The fix, as ever, is in.

Right there with them

A federal appeals court on Tuesday temporarily reinstated Texas’s ban on abortions amid the coronavirus outbreak, saying it needs time to review arguments about its impact.

The ruling is the latest in a ricocheting legal battle that began last week after the governor postponed non-essential surgeries, and the attorney general declared abortions to be included.

The Republican-led state is one of several that have moved to block abortions, arguing that providers are draining critical medical supplies that could be used to respond to the coronavirus pandemic.

Two of the conservative justices on the Fifth Circuit Court of Appeals issued the ruling, and gave both sides until Friday to respond, meaning the ban will remain in effect at least through this week.

In a dissent, Circuit Judge James Dennis noted that a federal judge in Austin had declared a day earlier that “irreparable harm would flow from allowing the (governor’s) order to prohibit abortions during this critical time.”

See here for the background. I wish these predictions weren’t so easy to make, but this is literally what the Fifth Circuit does. I’m going to go walk my dog and hurl curses in their direction. You go read Mark Joseph Stern and Mother Jones for more details about this.

Latest abortion ban halted for now

We follow the script.

Right there with them

A federal judge on Monday temporarily blocked Texas’ ban on abortions, a prohibition state officials said was necessary to preserve medical resources during the coronavirus pandemic.

The ruling came less than a week after Texas abortion providers announced a lawsuit against top state officials, challenging Attorney General Ken Paxton’s assertion that Gov. Greg Abbott’s executive order banning all procedures deemed to be not medically necessary should be interpreted to include abortions.

The court granted the abortion providers’ motion to temporarily block the state from enforcing the order, which was set to expire April 21, as it relates to abortions. The temporary restraining order will expire April 13.

“Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly,” wrote U.S. District Judge Lee Yeakel. “There can be no outright ban on such a procedure.”

Yeakel also wrote that people seeking abortions would “suffer serious and irreparable harm” if the ban were allowed and that temporarily blocking the executive order “will not disserve the public interest.”

“The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable,” Yeakel wrote.

See here for the background. The next page of this script is the state appealing to the Fifth Circuit, and the Fifth Circuit inventing some reason to give the state what it asked for. After that it gets a little murky, but by then it almost doesn’t matter because the state gets to do what it wants in the interim. In theory, once the emergency order is lifted then the justification for this ban goes away, but if you don’t think there’s some way that Abbott and Paxton might try to work around that, you’re not thinking hard enough. The Current and Slate have more.

Abortion providers file suit over Abbott executive order

You can’t let crass opportunism go unchallenged.

Right there with them

Texas abortion providers announced a lawsuit against top state officials, challenging an executive order earlier this week that included abortion in a ban of all procedures that are deemed to not be medically necessary.

In a press conference Wednesday, national and state abortion rights groups said they are seeking a temporary restraining order, with hopes of a more permanent injunction to follow. They are representing various abortion providers in the state, including Austin Women’s Health Center and Southwestern Women’s Surgery Center.

The ban, which Attorney General Ken Paxton later clarified applies to abortion clinics as well, was enacted to ensure the state maintains health care capacity as it prepares for an influx of COVID-19 patients. But abortion clinics and activists in the state pushed back almost immediately, with Planned Parenthood President Alexis McGill Johnson calling it an “exploitation” of the current crisis.

Sealy Massingill, the chief medical officer of Planned Parenthood of Greater Texas, took politicians to task for “playing politics” at a critical time. Planned Parenthood of Greater Texas still plans to keep clinics open, though he said the organization is bracing for further developments.

“I find it extremely distressing … that we are trying to respond to a purely political fight that [Gov. Greg Abbott] started. Patients who need abortions are on a time-sensitive deadline,” Massingill said.

Providers have already had to turn away patients, Massingill added, and delays of even a few weeks could render some abortions impossible if the patients’ pregnancies extend past legal deadlines.

Here’s the Trib story about the executive order. I didn’t get around to blogging about it because there’s just too much these days. It should be obvious that a “medically necessary” procedure is one that simply cannot be put off, at least not for a significant length of time, and that by that definition, abortion clearly fits. To claim otherwise, as the state of Ohio has also done, is sophistry at best and a straight up lie otherwise. In a rational world, this would get stopped in a hot second by any court. In a world that includes the Fifth Circuit Court of Appeals, your guess is as good as mine. Given that Abbott has declined to issue a statewide stay-at-home order, preferring to leave that to the locals, who have not seen fit to order clinics to stop providing abortions, the case for this is even flimsier. I feel confident that a district court judge will issue a temporary restraining order, but after that who knows. The Chron has more.

ACLU sues the “abortion sanctuary cities”

This was expected.

The ACLU filed a lawsuit against seven Texas cities on Tuesday for passing ordinances that aim to ban abortion by outlawing providers and advocates from doing business in their towns.

The suit, brought by the ACLU of Texas and ACLU National, contends the cities are violating the free speech of the eight banned groups, which include abortion providers and organizations that help people who need abortions. The ordinances label the groups “criminal organizations” and make it unlawful for them to operate within city limits.

“These ordinances are unconstitutional,” said Anjali Salvador, staff attorney for the ACLU of Texas. “Abortion is legal in every city and state in the country. Cities cannot punish pro-abortion organizations for carrying out their important work.”

The ordinances subject groups that would aid women seeking an abortion to illegal punishment without a fair trial, according to the lawsuit. The Lilith Fund and Texas Equal Access Fund, two of the eight groups banned from operating in the cities, are among the plaintiffs. Other banned organizations include Planned Parenthood, NARAL Pro-Choice Texas, Whole Woman’s Health and Whole Woman’s Health Alliance.

The ordinances make it unlawful for the organizations to offer services of any kind in the city, rent office space, purchase property or establish a physical presence. On the other hand, the ordinances acknowledge that cities cannot ban abortion under current law unless the U.S. Supreme Court were to overturn abortion protections guaranteed in Roe v Wade.

[…]

Waskom, a small town on the Texas-Louisiana border, became the first city in the state to ban abortion this way, although it had no abortion clinics. City officials voted unanimously in favor of the ordinance, fearful a Louisiana law banning abortions once a fetal heartbeat is detected could push clinics to relocate in Texas. Six other small cities in East Texas have passed similar ordinances: Naples, Joaquin, Tenaha, Rusk, Gary and Wells.

The ordinances make it illegal to provide transportation, instructions or money to someone intent on having an abortion. They also offer families of an aborted fetus the ability to sue abortion providers.

See here for some background, and here for a copy of the lawsuit, which was filed in federal court. I haven’t blogged about most of these ordinances because there’s not much new to say for each, and so far all of the “cities” involved have been tiny towns that have no clinics in them. You’d think that just the provision making it “illegal to provide transportation, instructions or money to someone intent on having an abortion” would be unconstitutional – would a city also be allowed to make it illegal to “provide transportation, instructions or money to someone intent on” gambling in Louisiana, or smoking weed in Colorado, or visiting the Bunny Ranch in Nevada, all things that are presumably also frowned upon by the people of Waskom? In theory, the Uber driver who takes you to the Greyhound station for a trip to Planned Parenthood in Houston would be guilty under this law, as would the driver of the Greyhound bus. You can’t stop someone from engaging in a perfectly legal pursuit.

As is always the case with this sort of thing, I agree completely with the intent of the lawsuit, and I’d love to see these towns get socked with large legal bills for their exercise in unconstitutional frivolity, that they may serve as grim examples for the next burg that might find itself tempted by the zealous anti-abortion grifters that sold them on it. But I admit to having some concerns as well. Do we really want to 1) provide another opportunity for Ken Paxton to grandstand (which, even though the state is not a party to the lawsuit, you know he will), 2) provide the Fifth Circuit with an opportunity to invent a reason why this is all hunky dory, and 3) provide SCOTUS with another opportunity to kneecap Roe v. Wade without explicitly overruling it? I shouldn’t have to feel this way – these ordinances are so obviously wrong there should be no cause for concern – but this is the world we live in. I just don’t love the risk/reward profile on this, and I hate myself for saying that. The Trib has more.

The extraordinary danger of being pregnant and uninsured in Texas

So utterly appalling.

Right there with them

From 2012 through 2015, at least 382 pregnant women and new mothers died in Texas from causes related to pregnancy and childbirth, according to the most recent data available from the Department of State Health Services; since then, hundreds more have likely perished. While their cases reflect the problems that contribute to maternal mortality across the United States — gross medical errors, deeply entrenched racism, structural deficiencies in how care is delivered — another Texas-size factor often plays a significant role: the state’s vast, and growing, problem with health insurance access.

About one in six Texans — just over 5 million people — had no health insurance last year. That’s almost a sixth of all uninsured Americans, more than the entire population of neighboring Louisiana. After trending lower for several years, the Texas rate has been rising again — to 17.7% in 2018, or about twice the national average.

The numbers for women are even worse. Texas has the highest rate of uninsured women of reproductive age in the country; a third were without health coverage in 2018, according to a DSHS survey. In some counties, mainly along the Mexico border, that estimate approaches 40%.

Public health experts have long warned that such gaps can have profound consequences for women’s health across their lifespans and are a critical factor in why the U.S. has the highest rate of maternal deaths in the developed world. Texas’ maternal mortality numbers have been notably troubling, even as errors in key data have complicated efforts to understand what’s going on and led skeptics, including the governorto question whether there’s really a crisis.

Hardly anyone outside the policy world has taken a deep look at how these insurance gaps play out for women in the second-largest state in the U.S. — at how, in the worst-case scenarios, lack of access to medical care endangers the lives of pregnant women, new mothers and babies.

ProPublica and Vox have spent the last eight months doing just that — combing through government data and reports, medical records and research studies, and talking with scores of women, health care providers, policymakers and families of lost mothers around the state. We learned about Rosa Diaz and dozens of others, mostly women of color, by scouring medical examiner’s databases for sudden, “natural” deaths, then inspecting investigator and autopsy reports for clues about what went wrong.

The picture that emerges is of a system of staggering complexity, riddled with obstacles and cracks, that prioritizes babies over mothers, thwarts women at every turn, frustrates doctors and midwives, and incentivizes substandard care. It’s “the extreme example of a fragmented system that cares about women much more in the context of delivering a healthy baby than the mother’s health in and of itself,” said Eugene Declercq, professor of community health sciences at Boston University School of Public Health.

Most of the mothers whose cases we examined were covered by Medicaid for low-income pregnant women, a state-federal health insurance program that pays for 53% of the births in Texas, more than 200,000 a year, and 43% of all births nationwide. In Texas, the program covers OB-GYN visits, medications, testing and nonobstetric care, from endocrinologists to eye exams.

But the application process is so cumbersome that women in the state have the latest entry to prenatal care in the country, ProPublica and Vox found. It can take months to be seen by regular providers and even longer to access specialists. This poses the greatest danger for high-risk mothers-to-be — as many women on Medicaid are, having had no medical care for significant parts of their lives. Then, roughly two months after delivery, pregnancy Medicaid comes to an end, and the safety net gives way to a cliff. For many new mothers, the result is a medical, emotional and financial disaster.

More than half of all maternal deaths in the U.S. now occur following delivery, according to the Centers for Disease Control and Prevention, with as many as 24% happening six or more weeks after a woman gives birth. In Texas, the proportion of late-postpartum deaths is closer to 40%, with black women bearing the greatest risk. “To lose health care coverage really has a tremendous potential to worsen outcomes,” said Dr. Lisa Hollier, chief medical officer for obstetrics and gynecology for Texas Children’s Health Plan and chair of the state’s maternal mortality review committee.

This is a long excerpt, but there’s a lot more to the story, so please read the whole thing. There are numerous policy decisions at fault here – not expanding Medicaid, low Medicaid reimbursements, cutting off Planned Parenthood and substituting in wholly inadequate alternatives, and more – and all of them can be laid at the feet of the state’s Republican leadership. Whoever runs against Greg Abbott and Dan Patrick and Ken Paxton in 2022 should loudly and repeatedly assert that every maternal death in Texas is their fault. I keep saying this, and it keeps being true: Nothing will change until we have different, and better, government in this state. There’s no other way to do it.

Let this finally be the end of the Heidi Group’s grift

And you should all be thoroughly appalled at the waste, fraud, and abuse committed in the name of screwing Planned Parenthood.

Right there with them

An anti-abortion group that came under fire for failing to provide services to thousands of Texas women must repay $1.5 million in overpayments and prohibited costs, state investigators said Thursday.

The findings, announced by the office of the health inspector general, are a new blow to the Heidi Group. The organization had hoped to replace Planned Parenthood as a top family planning provider, but was cut off from millions in funding last year after failing to serve tens of thousands of low-income women.

The office said on Thursday it had uncovered “serious contractual violations” and is expanding its inquiry to the entire span of the Heidi Group’s contracts, going back to 2016. That could mean additional repayments.

Forensic accountants found the group had paid medical providers hundreds of thousands in excess fees, had overspent on payroll and fringe benefits, and had expensed thousands in unallowable costs like food, gift cards, clothing and retail membership fees, according to a copy of the internal investigation obtained by the Houston Chronicle.

The inquiry covered a seven month period, from September 2017 to March 2018.

“It’s a travesty when you look at all the women who should have been receiving services and were not because of this,” said Rep. Donna Howard, D-Austin. “We’re talking about women who don’t have means to afford health care like many of us do.”

See here for a deeper dive on the Heidi Group’s utter failure, and here for all previous blog posts. As the Observer notes, the state finally canceled their contracts last month, after three years of shoveling good money after bad. In the meantime, thousands of women were denied the health care the needed and deserved. This is what happens when you put rabid ideology over reality. Until we get better government in this state, there’s always a chance it will happen again.

One thing our state loves spending money on

Defending unconstitutional anti-abortion laws in the courts.

As Texas defends abortion laws in federal court that mandate fetal burials and seek to outlaw certain medical procedures, the state has been ordered to pay pro-abortion attorneys $2.5 million — fortifying women’s reproductive rights groups that have repeatedly sued over restrictions passed by the state Legislature.

The August order from a federal judge in Austin is seemingly the final decision in a high-profile battle over a 2013 Texas abortion law the U.S. Supreme Court eventually struck down as medically unnecessary and thus unconstitutional. The law, which was in effect for three years, required abortion providers to comply with all the regulations for ambulatory surgical centers, forcing many to undergo expensive renovations, and required their physicians to obtain admitting privileges at a nearby hospital.

The judge’s order brings the state’s total cost for defending those now-defunct pieces of the law to an estimated $3.6 million.

“Passing regulations that are blatantly unconstitutional, and then wasting people’s resources to fight them, costs money and precious resources and time. And people are harmed in the process,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider and lead plaintiff in the case who notes that half of the state’s abortion clinics closed before the Supreme Court’s 2016 ruling. “That is a precious resource of Texans’ dollars being used toward that.”

Because the state lost the case, U.S. District Judge Lee Yeakel ruled it must pay the plaintiffs $2,297,860 attorney’s fees, $170,142 in nontaxable expenses and $95,873 in other costs. The amount represents nearly half of the $4.7 million in costs the plaintiffs say they incurred preparing and trying the case. The Texas attorney general’s office did not contest the judge’s ruling.

The award for the opposing attorneys is more than double the nearly $1.1 million the attorney general’s office reported spending on its own attorney’s salary, overhead, travel expenses and other costs associated with defending the law, according to open records obtained by the Texas Tribune in 2016.

Hardly the first time – that 2016 SCOTUS ruling cost the state even more – and until we get a different government, hardly the last time. The AG’s office declined to comment for the story, but we both know that Ken Paxton would gladly spend down the entire Rainy Day Fund in defense of these laws. It’s not really a cost, as far as they’re concerned. It’s an investment.

On a related note:

[Joe Pojman, executive director of the Texas Alliance for Life which advocates for stiffer abortion regulations,] said anti-abortion advocates need to think long-term if they want to overturn Roe v. Wade, which established legal precedent protecting a woman’s right to an abortion. The long-time activist said he is not confident the makeup of the U.S. Supreme Court is favorable to overturning Roe v. Wade — but it could be in a few years.

“We are telling our people that they need to stay focused on re-electing President Donald Trump because he has a track record of nominating justices who are possibly willing to take an honest look at Roe v. Wade,” said Pojman.

I’ve lost count of the number of times that people who voted for Ralph Nader in 2000 and people who voted for Jill Stein in 2016 have ridiculed the notion of judicial appointments as an electoral issue. Joe Pojman would like to thank them for their dedication to their principles.

How anti-choicers have won even as they’ve lost

The number of clinics that provide abortion care in Texas will never be what it was before HB2 was passed, despite the SCOTUS ruling that struck it down.

Right there with them

It’s been three years since the U.S. Supreme Court struck down parts of Texas’ controversial abortion law – and yet, most of the clinics forced to close after it first passed haven’t reopened.

The law, known as House Bill 2, was seen as one of the most restrictive crackdowns on abortion clinics in the country. It required clinics to operate like surgical centers and that doctors performing abortions have admitting privileges at a nearby hospital.

Like many other clinics across the state, the Planned Parenthood in San Angelo found the new requirements almost impossible to comply with. Shortly after the law passed, the clinic closed its doors.

“I really do miss it,” said Susanne Fernandez, who managed the clinic for more than two decades. “[We] were helping women be seen for their needs.”

The former clinic looks a lot like it used to, Fernandez said on a visit to the building earlier this month. The only difference is it’s been painted gray.

“Even the blocks in front of the building that have inscriptions on them, they are all still there,” she said. “They are just covered up.”

The clinic was the last abortion provider in that part of West Texas, a mostly rural, expansive part of the state, hundreds of miles away from any major city.

Fernandez said she knew many of the women the clinic served – who were largely low-income – would be greatly affected by its closure.

“The last day was sad; it was somber,” she said. “We did a lot of cleaning up. We all knew that was it.”

Fernandez said she still runs into women who used to come to the clinic.

“There is that thing in the back of your mind – where did these women go?” she said. “Where do they go now? I don’t believe a lot of them found any other health care afterward.”

I guarantee you, the legislators who voted for HB2 have never given that a single thought, and neither have the “pro-life” zealots who enable them. The unsung villain in all this is, as is so often the case, the Fifth Circuit, which not only overruled the district court that had sided with the plaintiffs, they also removed the temporary restraining order, thus allowing HB2 to be enforced while the case was being litigated. The upshot of that was that Texas got to put a lot of clinics out of business with what in the end was an unconstitutional law. See what I mean about winning even as they lose? There will never be a just remedy for this wrong.