The Fight to Restore Abortion Rights in Texas

In the fall of 2022, the Texas representative Ann Johnson met with a group of ob-gyns who wanted her to know that their state’s anti-abortion laws were risking women’s lives. Johnson is a Democrat in a red state, with a reputation for bipartisan effectiveness and an avowed interest in public-health issues. Her district, the 134th, includes the Texas Medical Center—a vast research and treatment complex, which Johnson calls a “shining beacon in the state, and a draw to people around the world.” In the meeting, though, the doctors described an atmosphere of frightening constraint.

A year earlier, the Texas Senate had passed S.B. 8, a law that banned abortions past the sixth week of pregnancy—or even earlier, if an ultrasound revealed electrical activity in fetal cells. Hospitals and lawyers were left scrambling to interpret the law. Did it also apply to miscarriage care? What if abortion was medically necessary? In the absence of clear guidelines, doctors were obliged to consult with peers or ethics committees regarding conditions as common as preterm ruptures of the amniotic sac, which account for roughly a third of premature births. While the deliberations stretched on, their patients’ risk of infection and illness grew.

Then the Supreme Court overturned Roe v. Wade, leaving each state to make its own laws about abortion. Texas legislators were ready; they had previously passed a so-called trigger law, linked to the fall of Roe, which banned the procedure entirely, “unless the mother’s life is in danger.” In order to secure access to an abortion in Texas, a woman had to be “at risk of death” or of “substantial impairment of a major bodily function.”

Among the doctors who came to see Johnson was Todd Ivey, a tall man with graying hair. Ivey, who was then sixty, had worked in Houston for decades, but had always left the politics of medicine to politicians. “We assumed that they would do the right thing,” he said. “Now they’re stepping into the medical arena.” Ivey spoke of treating a woman who had been diagnosed as having cancer early in her pregnancy. She was bearing her fifth child, and the cancer had spread to her spine. “I cannot leave my husband with four young children at home,” she told him. Ivey asked an ethics committee to approve a termination that would allow her to receive chemotherapy and radiation. To his dismay, the request was denied. Though the woman’s life was imminently at risk, it took Ivey four days to find a hospital and a physician that would perform the procedure. He came to see her case as evidence that a woman’s illness, no matter how serious, wasn’t enough to qualify for abortion in Texas.

For doctors, the risks of breaking the abortion ban were severe. A violation could result in a first-degree-felony charge, with the prospect of a substantial prison sentence, a fine of at least a hundred thousand dollars, and the loss of a medical license. Johnson said, of the conservative legislators who passed S.B. 8, “They very purposefully told the doctors, ‘I’m going to get you, both personally and financially.’ ” One provision in the law allows private citizens to file a civil lawsuit against anyone who helps a woman secure an abortion, with the promise of a ten-thousand-dollar reward if they prevail in court. The doctors meeting with Johnson worried that no one could be trusted. What if a nurse—or a receptionist, or a custodian—were lured into making an allegation? Older physicians were considering early retirement. Younger ones wondered whether they had a future in Texas. Hospitals were struggling to retain workers and to recruit new ones.

Ivey described a widespread feeling of futility. When a pregnant woman arrived in the I.C.U. with a brain tumor, he struggled to find a hospital in Houston willing to perform an abortion so that she could start treatment. “No one wanted to do it,” he said. The woman was ultimately able to terminate her pregnancy in Texas, but thousands of others have had to flee the state since abortion was outlawed. “Until you’re in a room, speaking to a family whose wife has a recurrent tumor in her brain stem and can’t access services because she’s early pregnant,” Ivey said, “or until you walk into an exam room and there’s a mother who brings her eleven-year-old daughter, who was molested by the grandfather and is pregnant—I really don’t appreciate someone telling me what the right thing to do is.”

Johnson is adroit at navigating the complications of being a liberal in Texas. Her office is decorated with a framed picture of her and her wife, Sonya—but also with a cowhide rug and a bronze statue of a Texas Ranger, which belonged to her father. A petite woman of forty-nine, with short brown hair and a ready smile, Johnson has a plainspoken manner, which she cultivated as a chief prosecutor in the Harris County District Attorney’s office. In 2020, she unseated a Republican who had served as a state representative for a decade. During the campaign, Johnson promised to uphold reproductive rights—a pledge that she renewed in 2022, when the midterm elections came less than five months after the fall of Roe.

The midterms proved to be a referendum on abortion rights, providing an advantage to Democrats across the country. But, in Texas, the Republican governor, Greg Abbott, won reëlection by an eleven-point margin, and the G.O.P. gained four seats in the legislature, increasing its majority. Though Johnson kept her seat, she had to reckon with the results of the election. “We lost the debate on choice,” she said. “We lost the messaging battle.”

If Johnson were to amend the state’s laws, she knew that she would have to be subtle. The mere mention of the word “abortion” would end conversations with Republicans in the House. Proposals to carve out exceptions for rape or incest were immediately dismissed, as were those designed to leave medical decisions to doctors. Anti-abortion advocates were skilled at creating resistance. “If you do anything around the abortion statute, the minute it files, people are looking for certain code sections or language,” Johnson said. “Then they’ll rally support against it.”

During Johnson’s time in the D.A.’s office, she had represented human-trafficking victims who faced prostitution convictions. She promoted the application of affirmative defense, which allowed courts to limit the criminal culpability of women who had been coerced into committing offenses.

It occurred to Johnson that affirmative defense could also help physicians. If the legislature created specific exemptions to the ban on abortion, then doctors who got sued could show that the treatment they had offered patients was compliant with the law. “Politically, we’re not touching the abortion statute,” she reasoned. “Republicans can still tell their people, ‘You could sue all you want.’ ”

Early last year, Johnson took her idea to fellow House members, and presented some of the cases that doctors had been dealing with. “I would give them a complicated moral scenario, and they would say, ‘Well, that’s not an abortion,’ ” she recalled. “It’s hard for people who have a political agenda, one they feel is unwavering, to see the result of the policy.”

Anti-abortion lawmakers were distrustful of doctors, and questioned their motives. To prove her case, Johnson needed to find women whose lives had been directly affected by abortion bans. Her team scoured the Internet for stories, and sent out word through friends and relatives. Many of the women they found were too scared to talk. Others changed their minds midway: “I can’t help you after all.” But half a dozen agreed to speak with Johnson.

One morning, a thirty-two-year-old woman sat across from Johnson in an airy room on a quiet, tree-lined street near the Texas Capitol. The woman, who was joined by her mother, wanted Johnson to see a scar that ran along her abdomen, down to her pubic bone. Sixteen weeks into her pregnancy, the woman had been rushed to the hospital with ruptured membranes, which threatened the baby’s survival. She ran the risk of developing an infection, and the baby was weeks from viability, but doctors said that, until she presented a “life-threatening physical condition,” there was nothing they could do. After waiting for several days, the woman went into labor, and her baby died within minutes of delivery. By then, her placenta had become infected. The woman soon returned to the hospital with sepsis, a life-threatening condition, and this time she stayed for three weeks.

“Her body was wrecked,” Johnson said. Nevertheless, she added, “She put great value in what her child’s death could mean to other women.” Stories like these reaffirmed Johnson’s determination to reverse the law, or at least to clarify it. Change, though, would have to come by way of compromise. “To give in to anything might feel like capitulation,” Donna Howard, a Democratic representative who chairs the Texas Women’s Health Caucus, told her. “But politics is an incremental process.”

H.B. 3058 was introduced as a shell bill, devoid of any potentially controversial language—which Johnson knew would give her more time to negotiate with lawmakers. She had found an unlikely sponsor for the bill: Bryan Hughes, a trial lawyer with a reputation as one of the State Senate’s most conservative members. At fifty-four, Hughes has championed numerous controversial bills—including one that secured the right to carry a gun without a license and another meant to ban critical race theory in school—but he is best known as the architect of S.B. 8.

Like other Republicans, Hughes insisted that, if the laws were harming women, it was because doctors were misreading them. As reports surfaced of women being denied treatment for premature ruptures and ectopic pregnancies, Hughes sent a letter to the state medical board, suggesting that physicians were at fault. “Texas law makes it clear that a mother’s life and major bodily function should be protected,” he wrote. “Any deviation, such as these allegations, should be investigated as potential malpractice.”

Johnson had allies tell Hughes the women’s stories that she had gathered. A malpractice lawyer named Jay Harvey also met with him and tried to change his mind. Harvey, who had known Hughes for twenty years, asked, How can doctors be faulted for denying care when faced with the threat of civil liability? In recent months, three women had approached Harvey about filing suit, after they were discharged from hospitals with ruptured membranes. In one case, the doctor had explicitly noted in the medical record, “Would otherwise terminate, but, for existing Texas state law, sent her home.”

Others had approached Hughes about these kinds of cases. “We began to hear that there were situations where moms were not getting treatment,” he told me. “Attorneys wanted to err on the side of caution, to protect the hospital, and were not allowing doctors to act in some of these life-threatening situations.” It helped that some of the concerns came from influential donors. He heard from two “power couples” in Dallas: “The husbands called me and said, ‘You know, my wife’s concerned about this. We’ve heard there may be a way to fix this. We just hope you’ll do whatever you can to get that done.’ ” Hughes conferred with leaders in the anti-abortion movement. “Women are being harmed,” he told them. “Though we believe the law is clear, we’d like to find a way to clarify further.”

Leave a Reply

Your email address will not be published. Required fields are marked *