Big Jolly Politics

politics in Harris County and Texas

Beyond Abortion – Protecting Life in the Womb

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The right to life movement is rightly concerned with curtailing abortion. However, with the stinging defeat of HB2 perhaps it’s time to step back and look for other ways to protect life in the womb. I wrote earlier about the need for alternative ways to attack abortion. This is a follow up with a specific way that the legislature can enact this upcoming session. Some have suggested that since the posts are long that I add a “take away” paragraph at the bottom. One is present below.

Hopefully everyone learned a couple of lessons with the demise of HB2. First, a direct assault on abortion is unlikely to survive judicial challenge. Even if a conservative is appointed to the Supreme Court any legislation that directly limits abortion is unlikely to get 5 votes. Second, even if the legislation has some lip service of being a health and safety bill if it’s not truly aimed at health and safety it will be reviewed as an antiabortion bill.

With that in mind, the thought process needs to turn to what can be done to protect unborn life and still pass judicial muster? While many potential avenues exist, one of the most basic is to achieve a change of the hearts and minds of those involved in the process. Although the end result may have an indirect impact on abortion since the goal is other than abortion a piece of legislation that tries to entice others to choose life rather than death should survive review since the aim is other than a direct impact on abortion.

Planned Parenthood can object to the contrary all they want, but the truth of the matter is abortion is big business. If the business aspect of abortion can be tilted to choosing life rather than death then the incidence of abortion should drop as a result. Many groups attempt to address the financial impact from the prism of helping the mother in hopes she will choose life. However, other actors are involved from a financial aspect. Rather than trying to cut funding for abortion providers, how about trying to change the financial picture to where the doctors have an incentive to recommend treatment for prenatal issues rather than recommending abortion?

The current status of the law is that life exists in the womb, and that evidence of life is found roughly three weeks post conception. The Texas Penal Code section 1.07 defines terms found in the code and notes, “(49) “Death” includes, for an individual who is an unborn child, the failure to be born alive.” The Texas Family Code section 151.002 gives examples of what constitutes “evidence of life” to include, “beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.” The medical literature varies on exactly when the heart beat begins, but the literature has a narrow range of 18-22 days. So the current status of the law is that life is established at around 3 weeks from conception.

With that as a backdrop, the question becomes how to use the current law to give financial incentive to doctors to recommend treatment rather than abortion? This goal can be achieved by implementing the current laws more fully. This can be done by requiring paternal insurance coverage to cover prenatal care along with maternal insurance coverage. It is simply a matter of legislative action and ensuring that the Affordable Care Act doesn’t explicitly speak to the contrary and cause preemption.

In terms of crafting legislation, the legislative findings and intent are critical. The actors need to be careful to establish the health and wellbeing of the child are the driving motivations. Antiabortion forces are likely to try and establish a heckler’s veto. This means legislators need to be careful not to tout any incidental impact the bill may have on abortion. Any potential changes need to be in separate bills so that they must be challenged separately if they are challenged, and are considered separately. Importantly, the committee hearings must be limited to the specific topic at hand. The committee hearings must also make specific findings of fact related to the specific ill the legislation will remedy. The legislative sponsors need to make speeches on the floor about the underlying intent of the legislation to establish the purpose of the legislation rather than allow the antiabortion forces to establish the purpose of the bill. And the legislation itself must make findings related to the committee testimony to establish a permissible action rather than allow antiabortion forces to frame the legislative intent as they did in HB2.

By way of example, a bill could be as follows:

Texas Insurance Code

Sec. 1366.003. OFFER OF COVERAGE REQUIRED. (a) Subject to this subchapter, an issuer of a group health benefit plan that provides pregnancy-related benefits for individuals covered under the plan shall offer and make available to each holder or sponsor of the plan coverage for services and benefits on an expense incurred, service, or prepaid basis for outpatient expenses that arise from in vitro fertilization procedures.

(b) Benefits for in vitro fertilization procedures required under this section must be provided to the same extent as benefits provided for other pregnancy-related procedures under the plan.

is modified to read:

Sec. 1366.003. OFFER OF COVERAGE REQUIRED. (a) Subject to this subchapter, an issuer of a group health benefit plan that provides pregnancy-related benefits for individuals covered under the plan shall offer and make available to each holder or sponsor of the plan coverage for services and benefits on an expense incurred, service, or prepaid basis for outpatient expenses that arise from in vitro fertilization procedures.

(b) Benefits for in vitro fertilization procedures required under this section must be provided to the same extent as benefits provided for other pregnancy-related procedures under the plan.

(c) In accordance with Texas Family Code section 151.002 establishing that evidence of life includes “beating of the heart” an issuer as set forth in subsection (a) must provide coverage for the unborn child regardless if the policy holder is the unborn child’s mother or father.

The list of findings can set forth the amounts of monies the state pays out for prenatal care, the burden that single mothers have meeting deductible/copay requirements, etc. With the findings directly addressing prenatal care, and the change in code directly pointing to already established pregnancy benefits rather than adding restrictions it will be difficult to argue this is an antiabortion measure. Will abortions drop as a side effect of this proposed change? Probably. Is that the purpose of the bill? No. As such, the rational relationship test rather than strict scrutiny applies. To further engrain the point, the bill can direct the attorney general’s office to move to remove any action filed in federal court to state court as the purpose of the legislation is health and safety related and therefore not appropriate for federal jurisdiction.

It’s worth noting, that a similar reasoning pattern and legislative action could be initiated to make the requirement for child support attach for the purposes of prenatal care as of the unborn child’s heartbeat.

Take away paragraph:

HB2 being struck down was a stinging defeat that establishes the need to try and protect life in the womb in other ways rather than abortion regulation. Abortion is big business, and one way to protect unborn life is to change the business underpinnings of the abortion business. The state penal code and family code already establish that life begins before birth and that a beating heart is evidence of life. To this end, a change in the insurance code to require paternal insurance as well as maternal insurance to cover prenatal care alters the financial picture so that doctors are more likely to recommend treatment rather than abortion. This will likely survive judicial review since it is a measure to expand insurance coverage rather than assail abortion. As such, it’s likely to be evaluated under a rational relationship test rather than the strict scrutiny test.

Texas Rep. John Smithee on HB-2, Rep. Jessica Farrar on hypocrisy

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Once again, the abortion debate in the Texas House shows us a clear contrast between Democrats and Republicans. On the one hand, you have Rep. John Smithee, R-Amarillo, give a thoughtful, reflective speech on abortion and the bill that the House was considering, HB-2. On the other hand, you have Rep. Jessica Farrar, D-Houston, reinforcing the hypocrisy that has come to define both her and Texas Democrats.

The headline from the Lubbock Avalanche-Journal caught my attention this morning: Smithee speech on abortion bill may have swayed votes.

Every now and then a state legislator makes a speech that defines his or her session.

For Rep. John Smithee, it was Tuesday night when emotions were running high on the abortion issue in the Republican-dominated Texas House of Representatives.

Smithee, R-Amarillo, who seldom speaks long on the House floor, gave a heartfelt speech to explain why he thinks abortion is wrong and the Legislature should pass House Bill 2, which would outlaw aborting pregnancies of 20 weeks or longer.

“By 12 or 13 weeks that baby, that little girl or boy, has developed fingernails, can suck its thumb and can be coiled,” Smithee began, explaining how a child in the mother’s womb rapidly develops each week during the nine-month pregnancy.

“By 20 weeks — and that’s what we are talking about in this bill — that baby is 8 to 10 inches long, and that’s what makes this procedure so difficult,” he said.

“It is not unusual to see the legs come out, the arms come out,” Smithee said. “I don’t want to talk about it, I am not enjoying this discussion and I know you don’t either, but what we are talking about in this bill is what we are here for: this piece of little baby, flesh by flesh.

“It is one of the most barbaric, brutal and painful exercises that one man puts on another,” he added. “We would never do that to another human being. We wouldn’t that to a terrorist.

“What has led us to this point where we have human-on-human violence, the most barbaric? This is what this about: How can we defend this practice?”

It is rare indeed for a floor speech to impact a vote in the Texas Legislature. So rare that I searched the archives, found the speech, and captured it so that we could all watch it. If you wish to watch it from the archives, go to the 10 hour, 6 minute mark.

It is an effective speech but the power to change votes comes not from what is said, but from who is saying it and how he says it. The who being a long time representative that has tremendous respect from his colleagues.  The how being that he doesn’t grandstand and bring out props to garner attention – he simply speaks from the heart about what he learned from testimony given during the hearings about the bill.

On the other hand, you have Rep. Farrar, whose latest foray into pushing late term abortions was arguing with an OB/GYN doctor who didn’t think fetuses with non-lethal conditions should be aborted after 20 weeks.  Rep. Farrar has a long history of supporting late term and partial birth abortions. If you’ll recall, she was also the host of the ghastly Christmas Holiday Party held at one of the largest abortion clinics in the world.  She is quoted in the Smithee article:

However, opponents of the bill said though they don’t doubt Smithee’s sincerity, legislators must consider bills based on facts and merits, not on emotions.

“When he made the description of how the fetus is dismembered, he became quite emotional,” said Rep. Jessica Farrar, a leading opponent of HB2. “We shouldn’t be making laws based on emotional arguments.”

How do you even respond to that? Farrar and the Democrats have used nothing but emotional arguments this entire process! Taking coat hangers onto the floor of the House. Falsely claiming that the bills close clinics. Falsely accusing Republicans of not caring about “born” children.  Inciting a near riot on the floor of the Texas Senate:

Rep. Jessica Farrar inciting a riot in the Texas Senate chamber.
Rep. Jessica Farrar inciting a riot in the Texas Senate chamber.

Complete, utter, and total hypocrisy on the part of Jessica Farrar. If you choose to watch Farrar’s speech after Smithee’s, go to the 10 hour, 25 minute mark. Nothing but emotional falsehoods.

The good news about this argument is that it exposes Texas Democrats for what they really are and what they really believe. They don’t care about children, women, or anything but power. Power so that they can fundamentally undermine Texas and the United States.

For all you professionals decrying this legislation and saying that it will be the death of the Republican Party in Texas, you wait and see.

And for Bill King, the “conservative” columnist in the Houston Chronicle, you need to step out of the country club, stop listening to your peers whining about “those” Republicans, and consider that without “those” Republicans, your country club Republicans wouldn’t have won an election in the last twenty years. Take that and stuff it in your cigar.