State House Bill 2709, filed Thursday, would penalize individuals for the use of medication to cause abortion in the state of Texas, whether the pills were acquired at a local pharmacy or through the mail. However, according to a local legal expert, it could also open the door for Texans to be prosecuted for the use of emergency contraception, like Plan B, or in vitro fertilization.
Current law
State Rep. Bryan Slaton of Royse City in East Texas filed the bill in order to "close the final loopholes allowing abortion in Texas," according to a press release. He declined to provide further comment on the bill to Houston Public Media.
With the overturning of Roe v. Wade in June 2022, Texas outlawed most abortions, with the only exception being those performed to save the life of the mother. The ban includes abortions as a result of medications like mifepristone and misoprostol, which are the most common abortion pills in the U.S. According to data from the Guttmacher Institute, in 2020, abortion pills were used in 54% of legal U.S. abortions.
However, current Texas law criminalizes the mailing or dispensing of abortion pills by providers — not the use of abortion pills by consumers. Many Texans are still able to access abortion pills that are mailed from out-of-state or outside of the U.S.
Seth J. Chandler, professor of law at the University of Houston Law Center, said current law largely penalizes abortion providers rather than patients, but if this bill were to pass, that would no longer be the case. "Texas law, generally speaking, does not penalize the woman herself for an abortion, whether that's a medical abortion or a medication abortion," said Chandler. "This bill would definitely change that."
What the bill says
Chandler says the bill would equate embryos and born children in the eyes of the law.
"The key to understanding this bill is the provision in which it says to treat an unborn child the same as you would treat a born child," he said. "It's basically saying that if the mother uses a pill to perform an abortion, we would need to treat that the same, in law, as if she gave her born child cyanide in order to kill it."
Chandler says, if this bill were to pass, taking an abortion pill or providing one would be regarded, under the law, as committing capital murder, which is punishable by death in the state of Texas.
"This is about as aggressive an anti-abortion bill as you can get," said Chandler. "It basically means you could get the death penalty for having a medication abortion."
Morning-after pills and IVF
Aside from tightening abortion restrictions and penalizing patients directly, as opposed to abortion providers, the bill also makes a modification to the definition of an "individual" in the state penal code. The implications could mean penalties for the use of emergency contraception or in vitro fertilization treatments.
As it stands today, section 1.07 of the Texas penal code defines an individual as "a human being who is alive, at any stage of gestation from fertilization until birth." This bill would specifically change the word "gestation" to "development."
The American College of Obstetricians and Gynecologists finds that a pregnancy is not established until a fertilized egg is implanted in the lining of a person's uterus, which could take several days after initial meeting of egg and sperm. Gestation refers specifically to the duration of a pregnancy, often measured from the first day of the last menstrual period, according to the organization.
By replacing "gestation" with "development," the bill does not necessarily establish the necessity of implantation. It requires only that fertilization has occurred.
Emergency contraception pills, which remain legal in Texas and are different than abortion pills, often work by delaying or stopping the release of an egg from the ovary. If this bill were to pass, Chandler says it could cause confusion about the legalities of using emergency contraception. It also could be interpreted as prohibiting fertility clinics that have fertilized eggs from ever disposing of them.
"I think there is certainly a strong potential for a prosecutor who wished to do so to use this bill to go after either emergency contraception that worked on un-implanted embryos or to go after fertility clinics that didn't perpetually preserve the embryos that were sitting in a test tube," said Chandler.
Legal gray area
Beyond emergency contraception and IVF, Chandler worries the bill would endanger patients who need an emergency abortion in life-threatening situations, such as ectopic pregnancies, whether or not that is the statute's intent.
According to the American College of Obstetricians and Gynecologists, an ectopic pregnancy occurs when a fertilized egg implants outside of the uterus. In about 90% of ectopic pregnancies, this occurs in a fallopian tube, which can then rupture and cause major internal bleeding. This is life-threatening and requires immediate surgery to remove the egg, which results in the termination of the pregnancy. According to the American Society for Reproductive Medicine, about 1 in 100 pregnancies are ectopic.
The bill permits abortions done "on a pregnant female to avert the death of the pregnant female that results in the accidental or unintentional death of the unborn child the pregnant female is carrying." In the case of ectopic pregnancies, while the procedure is done to avert the death of the mother, the known result of the procedure is the termination of the pregnancy.
"That potentially does not immunize a physician performing an abortion for an ectopic pregnancy because the death of the fetus is not accidental, since it's foreseeable that your actions will kill what is developing in the fallopian tube," Chandler said. "I don't think that's the intent of the statute, but as drafted, it might put fear into the hearts of doctors treating an ectopic pregnancy because the statute could be used to go after them."
Chandler believes the intent of the bill is to crack down specifically on medication abortion. "The core of the statute I think is pretty clear," he said. "That is to go after either people who use medication abortion or pharmacists who provide pills knowing to some certainty that the pill is going to be used to perform a medication abortion."
As of right now, the bill has not gone to committee and may not during this legislative session.