Note: Edited to add bill topic to title after publication.
With one month to go before the end of the legislative session, the lack of action on HB 844 is troubling. HB 844 is the dismemberment abortion bill, and as of 10:00 PM April 30 the bill is languishing in committee according to Texas Legislature Online. With 66 coauthors along with the original author the bill seems certain to pass if the committee acts.
HB 844 is not HB 2
Any bill can be written in a tighter manner, but this bill is not HB2. This bill is an attack on abortion. This bill also is likely to survive constitutional challenge if it goes before the Supreme Court. Unlike HB 2, this bill acknowledges it’s an attack on abortion and takes steps to note what it prohibits. Specifically the bill prohibits an abortion which, “dismembers the unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument.” The bill specifically exempts, “an abortion that uses suction to dismember the body of an unborn child into a collection container.”
HB 2 was written to have a significant impact on abortion. HB 844 is narrowly written to both limit impact and be easy to comply with. The bill seeks to prevent the living baby from being chopped to pieces. Chopping a living baby to pieces. That’s what the bill is trying to prevent. The heinousness is striking; the improperness of which is a matter of moral certitude. Don’t chop a living baby to pieces. That’s the kind of gut wrenching moral certitude that was held to be subject to regulation in the partial birth abortion ban. With the bill trying to limit the scope of restriction to one that is easily complied with the burden is low. Don’t chop a living baby to pieces – the state’s interest is high. The undue burden test is highly likely to be resolved in the state’s favor upon challenge.
What can be done?
So what can be done? First, the committee could act. Since it hasn’t done so now it’s not likely to do so. The intent appears to be kill the bill in committee so it cannot be voted on. A motion could be made to require the committee to act. This would require acknowledging the member wishing to make the motion. With the intent to kill the bill in committee this is unlikely to be allowed, regardless of the rules. So what options are left? The best option is for Governor Abbott to call for a special session.
Why a Special Session?
A special session is likely the best option to pass HB 844 at this point. A special session also has significant benefits to the bill. First, the way the bill is written, it can be complied with in a manner that defeats the purpose of the bill. The bill prohibits a procedure that, “extracts the unborn child one piece at a time.” How to get around this? The intent is to kill the baby before chopping it into pieces. However, with the plain language of the bill compliance can be had by chopping the living baby into smaller pieces that can be removed 2 pieces at a time.
In addition to rewriting the bill tighter, another reason for a special session is to have the battle on the bill rather than let it die by shenanigan. The revolting nature of the process may well lead to quick passage rather than opposition. Why let the bill die in committee rather than have organized open opposition? The act prohibited is so revolting that an open battle doubtless moves the needle towards the antiabortion position. It’s not a battle the pro-abortion forces want to engage in. This places them in a position of battle or acquiesce. They may well acquiesce rather than suffer a disastrous public relations defeat on a cause that is likely to be upheld.
In the end, this issue should be apolitical. Don’t chop up living babies. That’s not a controversial position. Hopefully the shenanigans will end and issue can be settled amicably.
Thanks Greg!
While all of us who are pro-life wish Mr. Degeyter’s agruments analysis of the Supreme Court is true, unforunate reality is that it not. There is no change we have the necessary five votes on the Supreme Couirt to uphold this law that is effectively a ban on second trimester abortions.
It is no surprise that in every other state it has been passed and challenged, it is not being enformced.
Better to put our collective efforts to shut down Planned Parenthood’s trafficking of baby body parts by passing SB 8/HB 200. That bill bans partial-birth abortion (a favored method for harvesting organs), the sale of tissues and organs from the bodies of aborted babies, and research on those tissues and organs.
Here is our analysis: https://www.texasallianceforlife.org/protecting-the-unborn-not-funding-the-abortion-industry/
Dr. Pojman, if you have read my previous posts you will see that I have intentionally avoided criticizing TAL. However, the analysis you offered needs to be addressed.
As an initial matter, the analysis shows a disturbing lack of nuance. The analysis dutifully recites the appropriate case law, but doesn’t look at the standard that is established therein. Undue burden is the standard by which cases directly attacking abortion are decided. Rather than analyze the same, your analysis assumes that the dismemberment abortion bill fails the analysis without assessing why.
Worse, the analysis in effect misrepresents HB 844 via error of fact and uses the error of fact to establish a heckler’s veto. Your analysis states, incorrectly, that HB 844 criminalizes the procedure. This is a subtle inaccuracy. HB 844 prohibits the dismemberment of a LIVE (caps for emphasis) baby. HB 844 specifically permits the dismemberment of a DEAD (caps for emphasis) baby. As such, the legislation effectively adds a burden of killing the baby before dismemberment.
Why is this important? The requirement for a dead baby is the burden added; not an inability to perform dismemberment abortions. Killing the baby is easy to accomplish. Killing the baby is easy to prove. Both in terms of practice and record keeping the additional burden is scant.
The prohibition against partial birth abortions and HB 844 aren’t mutually exclusive. Both need to be passed. However, in the process all right to life parties need to show caution when testifying and cautious to put forth nuanced, thoughtful analysis. Failure to do so will be seized upon by pro-abortion forces in the challenge that invariably will follow.