In April 2019, a legislative proposal in the state of Texas garnered nationwide attention, including in the form of a widely-shared meme posted by the “Other 98%” Facebook page, which proclaimed that “Texas is considering the death penalty for women who have an abortion. They are now so ‘Pro-Life’ they want to kill you”:
It is true that in the first few months of 2019, members of the Texas House of Representatives considered and debated a bill which would have redefined a “living child” to include fertilized eggs, and had the effect of completely outlawing abortion by amending state law on assault and homicide.
In Texas, it is punishable by death to murder a child aged under 10 years, and since the proposed legislation would have reconstituted abortion as the murder of a living child, it is therefore true to say Texas lawmakers did indeed debate and consider a bill which would have had the effect of making abortions punishable by death.
However, the bill’s passage through the Texas legislature appeared to have come to an abrupt end on 10 April 2019, shortly after the “Other 98%” published the meme, when a Republican committee chairman announced he would not allow the bill to advance beyond the committee.
House Bill 896
Republican House Member Tony Tinderholt introduced House Bill 896 (H.B. 896) on 17 January, with his Republican House colleagues Mike Lang and Valoree Swanson joining as co-authors of the bill, on 26 February. On 25 February, the bill was referred to the House Committee on Judiciary and Civil Jurisprudence.
On 10 April, that committee’s Chairman, Republican House Member Jeff Leach, announced that H.B. 896 would not advance out of the committee, a move which effectively killed the bill:
— Jeff Leach (@leachfortexas) April 10, 2019
The legislation proposed making several changes to existing Texas law, with the intention of redefining a “living child” to include a fertilized egg and completely outlawing abortion in the state of Texas.
Criminal Homicide and Assault
Chapter 19 of the Texas Penal Code sets out the state’s law on criminal homicide, defining and outlining the punishments for murder, manslaughter, criminally negligent homicide, and so on.
Sec. 19.06 of that code creates an exception for abortion, stating that the law on criminal homicide does not apply where the death of an unborn child is brought about by the child’s mother, or by a licensed physician as part of a medical procedure. However, H.B. 896 would have explicitly reversed this exception, asserting that the law on criminal homicide “applies to the death of an unborn child regardless of whether the conduct charged” was committed by a mother or took place as part of a medical procedure.
Sec. 19.03 of the Penal Code states that where an attacker “murders an individual under 10 years of age,” that murder is a “capital felony,” punishable by execution.
By removing the Sec. 19.06 exception for abortions, H.B. 896 would therefore have had the effect of designating abortion an act of criminal homicide against a child under 10 years of age, effectively introducing the death penalty as a punishment for abortion. In this respect, the “Other 98%” meme and related news reports were accurate.
Chapter 22 of the Texas Penal Code sets out the state’s law on assault. Sec. 22.12 contains an abortion exception to the prohibition on assault which is almost identical to the one found in Sec. 19.06 of the chapter on criminal homicide. However, H.B. 896 also would have reversed that exception, stating that the ban on assault “applies to conduct charged as having been committed against an individual who is an unborn child, regardless of whether the conduct” was committed by the mother of the unborn child, or was part of a medical procedure.
Notably, H.B. 896 appeared to invite a court challenge against it, stating explicitly that “Any federal law, executive order, or court decision that purports to supersede, stay, or overrule this Act is in violation of the Texas Constitution and the United States Constitution and is therefore void.”
The bill also directed the state’s Attorney General to ensure the assault and criminal homicide prohibitions on abortion were being enforced by state agencies “regardless of any contrary federal law, executive order, or court decision.”
The U.S. Supreme Court’s landmark 1973 decision in Roe v. Wade ruled that a woman’s right to access an abortion was protected under her constitutionally-enshrined right to privacy. That decision has been the basis for decades of abortion liberalization, but pro-life activists have long sought to force the nation’s highest court to revisit it.
As the New York Times reported, H.B. 896’s attempted outright ban on abortion could be viewed as forming part of a wider pro-life strategy of implementing increasingly stringent abortion restrictions and prompting court challenges which could escalate to the level of a Supreme Court reversal of Roe v. Wade:
In other states, some Republican representatives have not been shy about getting a law on the books that could prompt the Supreme Court to revisit Roe v. Wade. In Mississippi, the Republican governor signed a bill last month that largely bans abortions once doctors can detect a trace of a fetal heartbeat with an ultrasound, which can come as early as six weeks into pregnancy. When a similar bill was being considered in Kentucky, the Republican majority leader said he would be proud if it were challenged up to the Supreme Court.
There is momentum building for fetal-heartbeat bills in Republican-dominated state legislatures. Texas, Missouri, Tennessee and Florida are expected to approve similar measures this year. Ohio’s legislature approved one on Wednesday, and the governor is expected to sign it. States like Ohio and Tennessee are also considering so-called trigger laws, which would immediately ban abortions if Roe v. Wade were overturned.