Houston Matters

Where is the fight over abortion headed in 2024? Experts weigh in.

With Texas being one of the most restrictive states for abortion laws, the fight is not over and experts weigh in on where the fight could be headed this year.

Demonstrators march and gather near the state capitol following the Supreme Court's decision to overturn Roe v. Wade, Friday, June 24, 2022, in Austin, Texas. The Supreme Court has ended the nation's constitutional protections for abortion that had been in place nearly 50 years.
Eric Gay
Demonstrators march and gather near the state capitol following the Supreme Court’s decision to overturn Roe v. Wade, Friday, June 24, 2022, in Austin, Texas. The Supreme Court has ended the nation’s constitutional protections for abortion that had been in place nearly 50 years.

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It's a new year, and the fight over abortion law is far from over.

Last year, many states passed various abortion laws, from those protecting its rights to total bans. Texas is among the states with a near-total ban. The year ended with a court fight over a Texas woman's pursuit of what her lawyers argued was a medically necessary abortion. She was denied and ultimately sought one out of state.

In 2023, U.S. Senator Tommy Tuberville of Alabama held up military promotions for months, because the Armed Forces were covering travel costs for abortion care for members of the military stationed in states that ban it. He eventually dropped those holdups.

So what happens next? Seth Chandler, professor of law at the UH Law Center, and Caroline Duble, political director at Avow Texas, an abortion rights advocacy organization, joined Houston Matters on Thursday to discuss.

Duble said she sees the next fight in Texas being for a culture change when it comes to abortion. When she says culture change, Duble says she means talking openly about it.

"It’s a long-term, long road ahead of us where we are changing hearts and minds, talking to people openly about abortion, talking about it as the normal, common everyday experience that it is and should be."

Seth Chandler said there are two upcoming Supreme Court cases that would help resolve the issues of what is and is not clear about the laws in Texas.

"One is actually about the most prevalent method of abortion commonly in use, which is medication abortion and the circumstances under which women can obtain that," Chandler said. "And the Supreme Court is going to have to decide if the Food and Drug Administration exceeded its authority in somewhat liberalizing the conditions under which those pills could be obtained."

That case would include discussing obtaining abortion pills via mail, which is contrary to current Texas law, Chandler said.

The second case is about the federal statute that requires hospitals with emergency rooms to provide emergency care that the Biden administration has interpreted to include abortion.

"The Texas Attorney General and Idaho Legislature and others feel that the federal statute doesn’t govern the practice of medicine," Chandler said.

Those cases are expected to be taken up in the spring, he added.

One big question that has been raised throughout a case in late 2023 is what constitutes as a medical emergency that would require an abortion, which is the one rare exception in Texas.

Chandler said there are several possibilities as to who can answer it.

"One is the Texas Medical Board could make an effort to provide at least some guidance, providing examples for of where it does constitute an emergency, and examples where it does not," he said. "There is some possibility of the Texas Supreme Court, in the case still pending before it, could attempt to resolve the issue."

Chandler said what he suspects is that the issue will be resolved in individual criminal trials where a doctor who performed an abortion has to defend themselves on the grounds that it constituted an emergency within the meaning of the Texas statute.

"And unfortunately for that doctor, that is going to be a difficult and very unpleasant process because they’ll already have been indicted and have their lives basically wrecked as a result," Chandler said.

Duble said she believes the doctor and the patient should be the only ones making the decision.

"The confusion is the point of these laws," Duble said. “Their goal is to create this culture, this aura of fear and illegality, because they’re not actually concerned about legal integrity, or clarity or the safety of their constituents. They only care about imposing their narrow worldview onto every Texan."

If the state had an interest in clarifying those exceptions, Chandler said there could be a list of medical conditions, such as pre-eclampsia, that could be sufficient for a medical emergency.

"The challenge, of course, is that it's very hard to write rules for the whole complexity of medical situations that are likely to arise, which gives rise to the call for advocates to basically cut back on the restrictions in the first place," Chandler said. "But there are, I think, intermediate steps that could be taken that would reduce the number of instances in which a doctor has a genuine fear and uncertainty as to whether they’re going to be prosecuted with the potential for life in prison for taking care of a woman in an emergency condition."

Chandler said abortions are being performed in Texas, between 30-40 in 2023, and there is a chance that someone could be indicted in those cases.

"And that would make very concrete the scope of the Texas emergency exception."

The other issue that might come up is the legality of the travel bans on "abortion trafficking" that some of the counties and cities, particularly those near New Mexico, have been enacting, and the constitutionality of those restrictions would come into play, Chandler said.