In the early morning hours of Wednesday, November 9, a man who’s said women should be “punished" for having abortions was elected to be the next president of the United States. Six hours later, Texas’ health department held a hearing on a proposed rule that many women say would do just that.
"The significant financial burden, the invasion of privacy, and intrusion of government will only hurt women,” said Round Rock OB-GYN Rebecca Teng.
This was the second hearing on a state rule that would require women (or their doctors) bury or cremate their aborted or miscarried fetal tissue. Currently, no law stops women from doing this in Texas if they want to. But this rule, proposed by Gov. Greg Abbott four days after the U.S. Supreme Court rejected Texas’ sweeping anti-abortion law, would force every woman at any stage of pregnancy to comply. In some cases, that means burying an embryo the size of a lentil.
State officials have given no real medical justification for the new rule, nor have they said who will pay for it.
Abortion advocates say it’s just another tool to shame women seeking an abortion—and to burden the few abortion providers left in the state. Now, with a Trump presidency on the horizon, and a reinvigorated state conservative party heading into the legislature, the fetal-burial rule may serve as a harbinger of things to come.
“This election shows that there’s no penalty for disrespecting a woman’s autonomy, in the grossest terms,” said Blake Rocap, legislative counsel at NARAL Pro-Choice Texas.
Despite Texas seeing an 323,000-vote increase in Democratic turnout from 2012 to 2016, the state’s aggressively gerrymandered districts — allowing conservative lawmakers to stay in powerful U.S. House seats year after year — will make it difficult to shake-up federal influence. That’s why Rocap believes it's time to focus on state legislative decisions, especially on the eve of a new session.
“We must remember that what happens at the state level has the most profound effect on reproductive health,” Rocap said. “The state Democratic turnout this election shows us that people are living and seeing the effect of conservative policies. And they’re not happy.”
Rocap predicts state Republican leaders will be emboldened by Trump’s win to continue pushing back on women’s rights in the state and federal levels. But under the state’s aggressively right-wing leadership, should Texas expect anything but?
This state has introduced some of the harshest barriers to reproductive rights in the country. In 2012, a federal court upheld Texas' "fetal heartbeat" law, a rule that forces doctors to make women who are about to get an abortion look at an ultrasound image of the fetus and listen to its heartbeat. Last year, Texas cut off all state Medicaid funding to Planned Parenthood after an anti-abortion advocate released widely discredited videos about the women's health clinic. State officials also approved a law in 2015 that forced pregnant minors who wanted an abortion without parental consent to appear in court to prove they are "mature" enough to make the decision on their own.
And, of course, in 2013, then-Gov. Rick Perry signed HB2, a bill that used unnecessary building code rules to force dozens of abortion clinics across the state to close—thus barring hundreds of women from getting an abortion. While HB2 was blocked by the U.S. Supreme Court this June, no abortion clinics have reopened in the state.
Texas' record on abortion access speaks for itself, said Dan Quinn, Communications Director at Texas Freedom Network, a bipartisan organization that advocates for reproductive and religious rights.
“Not a lot has changed, in some ways,” Quinn said. “State officials have made it pretty clear for a while that they’re going to do everything they can to restrict reproductive rights. It was going to be a big part of the next legislature regardless of the election's results.”
But Trump’s touting of entirely false ideas about abortion (he claimed women can have an abortion on the “final day” before giving birth at the final presidential debate) may add fuel to Texas’ fire.
And yet, there’s still hope. Patsy Martin with Annie’s List, a state organization that works to elect pro-choice women to the legislature, said the election of seven new Democratic women to the Texas House is a silver lining to a dark Election Day.
“We have new women promising to take care of women and their rights across Texas,” she said. “We are making progress."
But, she added, it's a small victory.
“Women have already seen so many cuts to our health care in Texas, we can’t handle more,” she said. “Plus, Trump wants to repeal Roe v. Wade with a Supreme Court nomination...that’s very scary.”
On Wednesday, Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health said she was “deeply concerned” about the election results. Multiple studies have found Texas Latinas to be most threatened by the state’s burdensome abortion restrictions.
“President-elect Donald Trump and Vice President-elect Mike Pence have pledged to advance some of the most egregious and draconian rollbacks of progress towards reproductive justice made in recent years,” she wrote in a statement. “We hope for policy solutions that put our families first and put Islamaphobia, xenophobia, homophobia, transphobia, racism, classism and sexism last.”
Many abortion advocates actually fear Mike Pence’s position in the White House more than Trump’s. Which is understandable. In 2011, then-Senator Pence was the first to pen a national bill to defund Planned Parenthood. Shortly after, he led the rallying cry to shut down the federal government if Congress kept funneling money to Planned Parenthood.
Pence then kept up the fight as Indiana governor, pushing a bill that would force abortion providers to perform an ultrasound on every woman seeking an abortion and describe the embryo in detail to her, and a bill that would allow hospitals to deny abortions to pregnant women—even if they would die without it. He even tried to redefine the state’s definition of “rape" in an effort to block certain rape victims from accessing an abortion.
Texas lawmakers have followed the example set by Pence. In fact, the fetal burial rule discussed Wednesday is nearly identical to an Indiana bill Pence signed into law in March.
“I don’t think people truly get it. The prospect of having Mike Pence as Vice President is very, very scary,” said NARAL’s Rocap.
Plus Trump, who has wholeheartedly supported abortion access in the past, hasn't exactly been consistent on the issue.
“I don’t think anyone knows what’s he’ll actually do. He doesn’t have a good record of doing what he says,” he said. “It’s hard to have a crystal ball to see what the next few years will hold.”
The finalized state fetal burial rule may be published by the end of the year—but has the potential to carry over into the 2017 legislative session, effectively kicking off the predicted legislative battle over reproductive rights.