SB31 & HB44 a would allow the state to prosecute abortion funds, helpers—even patients
Jessica Valenti at Abortion, Every Day:
Texas Republicans are poised to pull a fast one: They’ve convinced Democrats and doctors to support a bill they claim will protect life-saving abortion care and ‘clarify’ the state’s ban. But the rapidly advancing “Life of the Mother” legislation is a Trojan Horse—there’s a 100-year-old ban hiding inside, ready to be revived and used to prosecute abortion funds, helpers, and possibly even patients. Legal experts I spoke to in Texas called it “the most dangerous” anti-abortion bill currently before the legislature. So how has this flown under the radar? Blame a mix of GOP sleight-of-hand and pro-choice politicians so eager for a win—and so desperate to ease the suffering of Texas women—that they’ve missed the fine print. To be fair, it’s not an easy catch: What’s happening is buried in a maze of dense language and historical statutes. I’m going to do my best to lay it out for you, so please stick with me—this one really matters. Chances are, you’ve heard about Senate Bill 311: It’s been framed as Republicans’ oh-so-generous move to ensure doctors can provide life-saving abortions without fear of civil or criminal charges. Texas newspapers and national headlines describe it as a bill that will “expand protections” and “clear confusion” around the state’s ban, while lawmakers on both sides of the aisle claim it will save women’s lives. The Texas Medical Association has endorsed the bill, as have anti-abortion groups.
In short, SB 31 is being sold as a rare moment of bipartisan agreement—a good-faith effort to help doctors and patients. The truth, however, is that Republicans are exploiting Texans’ desperation to stop women from suffering and dying—using that urgency to pass a law that will ultimately broaden their power to punish. At the heart of this deception is a 1925 abortion ban. This Texas law made performing an abortion a felony unless it was done to save the patient’s life. But unlike the state’s modern bans, the century-old law also made it a felony to help someone “procure” an abortion—and it didn’t explicitly protect patients from prosecution. (Remember this for later.) Obviously, this 1925 ban was unenforceable for decades under Roe v. Wade—but after Dobbs, Texas Republicans argued it could go back into effect. Attorney General Ken Paxton, in particular, was eager to use the law: the same day Roe was overturned, he issued an advisory declaring the 1925 ban enforceable—and repeated the claim in an updated advisory three days later. Why was he so eager to dust off a 100-year-old law? In part, because it would let the state start prosecuting people immediately. (Texas’ trigger ban couldn’t be enforced until the Supreme Court issued its formal judgment in Dobbs, which could take months.) But more importantly, Paxton knew that reviving the century-old ban would dramatically supercharge his ability to prosecute. Remember, the 1925 law would explicitly allow Paxton to prosecute abortion funds that help patients ‘procure’ care, and open the door to targeting patients. What Republican legislators did next made it even clearer that the punishment was always the point: the ultra-conservative Texas Freedom Caucus started sending threatening letters to companies that promised to reimburse employees for out-of-state abortion travel—citing the 1925 ban. They also targeted abortion funds, warning that donors, employees, and volunteers could be prosecuted under the 100-year-old law.
Thankfully, Texas funds sued to stop that from happening. Paxton lost the legal battle in 2023, when a federal court ruled that the zombie ban had been “repealed by implication.” (Translation: you can’t enforce a nearly century-old ban when newer laws have already replaced it.) And while Paxton and Texas Republicans continued to claim the old ban was still on the books, that federal ruling blocked them from enforcing it.
[...] In other words, anti-abortion politicians get the best of both worlds if this bill passes: they get to look like they give a shit about women’s health and lives, while expanding the state’s power to punish. And let’s be clear about how serious that punishment would be. One Texas abortion rights lawyer told me this would open the door to prosecuting abortion funds, pregnant people, and the families or friends who help them access out-of-state care. And that’s regardless of circumstance—rape, incest, and fatal fetal anomalies are not exceptions under Texas’ new or old bans.
The so-called “exceptions” bill in Texas is just a trojan horse for anti-abortion reactionaries.
