[This article was written following a specific request. I have decided to share it with a larger audience since there is clearly a need to understand the issues facing our society when it comes to regulating abortion and helping pregnant women in difficult circumstances. Please consult the references made herein for more in-depth information. The reader may share with others, but please contact me for permission to publish to the public. drgabrooks@comcast.net. George A. Brooks. All Rights Reserved.]
It cannot have escaped the attention of anyone that we are deep into a contentious national election cycle, so it is not surprising to see ads that are inflammatory with untruths and half-truths. The goal of such ads is to demonize political opponents when the person sponsoring the ads does not have a record of beneficial service to report to the electorate. One of the issues, although not the one of highest priority for most of the public, is that of which authority gets to regulate abortion. Almost everyone believes some regulation is necessary. Until 1973, all states had laws regulating abortion in various ways determined by the people in those states.
In January 1973, the US Supreme Court ruled that women have a “right” to an abortion. This opened the door to establishing abortion clinics across the country, and it saved Planned Parenthood from imminent bankruptcy. At the same time, people opposing abortion as a form of birth control mobilized to establish pregnancy help centers for women in distress so they would not be pressured into abortion as their only choice when in difficult life situations.
Since then, abortion has become a hugely profitable industry, and much of the money produced from abortions has been used to support political campaigns to elect those who will promote abortion and ensure continued profitability for abortion facilities.
The history of abortion dates back at least 5000 years. I begin my book Building a Culture of Life with history from antiquity to the modern era…through the year 2020. I wrote the book because of my personal belief in the sanctity of human life, and because very few people really know the history of how abortion became a tool for political power and money. There will never be a better time than the present for people to become acquainted with the issues and conversant in the truth. https://buildingacultureoflife.org/?page_id=194
As a medical doctor, I was trained in providing care for pregnant women and managing complications of pregnancy and childbirth. I delivered hundreds of babies, both normally and by C-section. I have performed many procedures to remove products of conception from the womb after miscarriages to stop bleeding and prevent infection. I have delivered babies known to be dead who died in the womb after being strangled by an unusually long umbilical cord. I have operated to terminate an ectopic (outside of the womb) pregnancy and save the woman from certain death. I helped abort a pregnancy in a woman with lupus who was in a coma with her only hope to live being to terminate the pregnancy. One night, I was called to an operating room where a pregnant woman was in surgery for a gunshot wound to the abdomen. She was about 34 weeks pregnant. The bullet struck and killed the baby.
I have seen the happiness, the sorrow, and the tragedy. I know the history, I understand the issues, and I know current law. Nobody can lie to me about why women seek an abortion, the impact on women who have had an abortion, or the impact of laws regulating abortion.
Recent ads on television have called Texas laws that regulate abortion cruel and dangerous. The public know little about these laws, so that leaves a way for such assertions to be used to demonize a political opponent and attempt to get more votes for the one sponsoring the ads.
In order to understand how we got to this point in the modern era, I recommend Chapter 1 of my book. When the United States gained freedom from the common laws of England in 1783, every state decided on its own set of laws. Abortion was considered socially unacceptable, but was not illegal in most states. Antiabortion statutes began to appear in the United States in the 1820s. The reader is invited to read my book and become familiar with events from 1820 to 1973 when the Supreme Court ruled in the case of Roe v Wade that women in the United States have a “right” to an abortion.
Then, in June 2022, the Supreme Court ruled that Roe v Wade was flawed in its reliance on possible alternative interpretations of fragments of constitutional amendments. They ruled that the 10th Amendment clearly stated that, in absence of a federal law passed by Congress, the individual states have the right to debate the issues and elect people to make the laws governing their own states. That returned us to the way we lived in 1972.
Now, let us discuss the specific issue of laws in Texas concerning abortion.
On December 29, 1845, Texas officially joined the Union, with transfer of federal governing authority taking place on February 19, 1846. In what follows, I rely on the Texas State Law Library. The reader wishing to delve into additional details will find this link useful: https://guides.sll.texas.gov/abortion-laws/history-of-abortion-laws
[some of the text below is copied and pasted from that web site]
In 1854, the General Laws of Texas Act, Supplemental to “Acts Concerning Crimes and Punishments” made it a criminal offense to attempt to “procure the miscarriage of any woman being with child.” In 1907, a bill added a definition of “abortion” to the existing statutes. The statutes regulating abortion were renumbered in the 1925 Penal Code.
In the aftermath of the Roe v Wade ruling in 1973 that the Texas laws were unconstitutional, the Texas Legislature reorganized the Texas Penal Code and laws regarding abortion, which could no longer be enforced due to the ruling in Roe. The laws were moved to the Revised Civil Statutes. The Legislature never removed the laws from the statutes.
One should observe from the foregoing that since 1854 it is has always been the people of Texas, through their elected representatives, who have decided on laws regulating abortion (with the exception of the Roe years), and that is once again the case today. Ads currently claiming that Texas laws are “cruel” to women and “put their lives at risk” are not only being untruthful concerning the facts, but they are also denigrating the democratic process and the right of the people to debate the issues in a free society and elect representatives to make the laws that govern themselves.
In 1992, the Supreme Court ruled in Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al. (“Casey”) that there could be a new standard for courts to use in evaluating the constitutionality of abortion laws. The Court created an “undue burden” standard for whether a law is putting a “substantial obstacle” in the path of a woman seeking an abortion prior to the fetus’s viability. This allowed states to regulate or prohibit abortion once the fetus was “viable” to survive outside the womb.
In 1999, Texas legislators passed a law preventing a physician from performing an abortion on an “unemancipated minor” without permission from the minor’s parent or guardian.
In 2003, the Woman’s Right to Know Act was passed. It required the physician providing an abortion to discuss specific medical risks from the abortion process and tell her about sources of support to help her keep the baby. It also gave the woman the right to review informational materials published by the state on the same topics.
In 2011, the legislature added to existing “informed consent” laws the requirement for a sonogram in order for informed consent to be legal prior to performing an abortion. This bill required that a physician provide a sonogram within 24 hours before performing an abortion. The doctor performing the sonogram was required to do the following:
- Display the sonogram so that the patient can see it;
- Describe the images on the sonogram; and
- Make the heartbeat audible so that the patient can hear it.
The patient had the option to view the sonogram and hear the heartbeat, but was required to hear the description of the sonogram unless the pregnancy was the result of rape or incest, the patient was a minor, or if the fetus had an irreversible medical condition.
In 2013, the legislature passed HB 2, requiring physicians performing an abortion to have admitting privileges at a hospital within 30 miles of where the abortion was performed. It also required that abortion clinics conform to stricter standards than they previously observed. It required them to meet “ambulatory surgical” standards, which covered a broad range of topics like construction, plumbing, lighting, medical equipment, and staff qualifications.
HB2 also required the doctor to estimate the “post-fertilization age” of the fetus. It prohibited the doctor from performing the abortion if the fetus was 20 weeks or older, with some exceptions. This put the point at which a woman could no longer obtain an abortion slightly before the third trimester.
In 2016, the Supreme Court struck down the provisions in HB 2 related to admitting privileges and clinic standards in their Whole Woman’s Health v. Hellestadt decision, ruling that the law posed an “undue burden” to abortion access under the ruling in Casey.
In 2017, SB 8 added to the Woman’s Right to Know Act subchapters prohibiting “partial-birth” abortions and “dismemberment abortions,” these being considered horrifying to many people.
This bill also added new provisions about how to dispose of embryonic and fetal tissue, requiring these remains to be cremated or given a burial. The federal Fifth Circuit found these laws to be unconstitutional in 2018 in the Whole Woman’s Health v. Smith decision and prevented these laws from being enforced. Following the Dobbs ruling by the US Supreme Court in 2022, that decision was reversed in the case of Whole Woman’s Health v. Young.
In 2021, SB 4 placed new restrictions on “chemical abortions” (use of abortion pills). This bill:
- Prevented abortion-inducing medicine from being delivered by mail, delivery service, or courier.
- Required a physician to examine in person a woman seeking a medical abortion.
- Prevented a physician from prescribing abortion-inducing medicine for a pregnancy with a gestational age of more than 49 days.
The legislature also passed SB 8 (2021), known as the “Texas Heartbeat Act.” It added a new subchapter to the Woman’s Right to Know Act prohibiting abortion after a fetal heartbeat is detected, which can be as early as 5-6 weeks gestation. However, the law explicitly permitted an abortion by a doctor who felt that “a medical emergency exists.” Moreover, the law explicitly stated that a woman shall not be prosecuted for having an abortion.
SB 8 (2021) also created a “civil enforcement” measure. It allowed any person, other than a state or local government employee or officer, to sue anyone involved in providing an abortion or intending to provide an abortion after the detection of a fetal heartbeat. This included third parties who “aid and abet the performance or inducement of an abortion,” including paying for the abortion. The United States Supreme Court declined to hear an emergency challenge to this law in Whole Women’s Health v. Jackson, allowing it to go into effect.
In addition, in 2021 the legislature passed HB 1280, The Human Life Protection Act, which contained a “trigger” provision that would ban most abortions (with noted exceptions) 30 days after one of the following events occurred:
- The issuance of a judgment by the United States Supreme Court overturning Roe v. Wade;
- The issuance of any other judgment by the United States Supreme Court giving the states the power to prohibit abortion; or
- The adoption of an amendment of the United States Constitution giving the power to prohibit abortion to the states.
In June 2022, the US Supreme Court issued an opinion in Dobbs v. Jackson Women’s Health, finding that Roe v. Wade was wrongly decided. It found that there was no right to abortion included in the United States Constitution. Through this ruling, it allowed individual states to regulate abortion under the 10th Amendment according to the will of the people.
A judgment in a Supreme Court case overturning Roe was one of the potential “triggers” listed in HB 1280. Therefore, Texas law HB 1280 prohibiting most abortions went into effect on August 25, 2022. It supersedes previous laws, and is the current law in Texas.
The Guttmacher Institute published an article June 6, 2022, when it appeared highly probably that the Supreme Court would overturn Roe. https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned
In that publication, the authors stated alarmingly that 26 states were “certain or likely to move quickly to ban abortion” with terrible consequences to women. It was noted that 13 states had “trigger laws” in place that would take effect automatically if Roe was overturned. Actually, no state has passed laws banning abortion, but all states have laws regulating abortion. The article is lengthy and very informative about the laws in the various states at that time, but further comments are beyond the scope of this writing.
However, the reader should note that there is widespread support in the nation for restrictions on abortion, although some states have legislation favoring minimal or no restrictions. There have even been proposals to allow an unwanted baby born alive at term to die from lack of care. All but the most fratricidal persons among us have rejected this horrible thought.
Others have defiantly proclaimed that they know abortion is “murder” and they do not care. They still support unrestricted abortion on demand. At the same time, there remains much controversy over the lives of babies who are born alive after a failed abortion. Some people assert that the babies were meant to be killed and should be allowed to die. Some people advocate for exceptions to state laws banning abortion that include the presence of certain birth defects or a pregnancy that occurs due to rape or incest. Still others vow to codify Roe through a law passed by Congress and signed by a president that supports abortion, thereby hoping to make unrestricted abortion legal throughout the United States.
So, where do we in Texas stand today on laws regulating abortion?
Please note again that HB 1280 superseded the older laws cited above when it took effect in 2022 and is currently the law in Texas. HB 1280 protects unborn children from elective abortion beginning at conception. That law has an exception for medically necessary abortions when the pregnancy causes “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”
However, there are many inflammatory statements currently being made to try to persuade voters that the laws are cruel and put women’s lives at risk. The Texas Alliance for Life (TAL) monitors Texas legislation on matters of respect for life, monitors the propaganda of those supporting abortion, and sets the record straight. https://www.texasallianceforlife.org/
[some quotations made herein are also published by TAL]
In a communication dated October 1, TAL reports statements by current political candidates favoring unrestricted abortion claiming that doctors cannot perform or are not willing to perform abortions in Texas (and in other states with pro-life laws) in cases where the pregnancy endangers a woman’s life. These are debunked as outright lies by citing data from Texas Health and Human Services showing that from July 2022 through May 2024 Texas physicians conducted 116 inducted terminations of pregnancy pursuant to the exceptions in HB 1280. The Texas data are consistent with data from other states with pro-life laws that have reported abortions for medically necessary reasons. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4909792
In addition, the Texas Medical Board has issued rules explaining the law, including the provision that the medical necessity exception does not require the woman’s life or injury to be at imminent risk before a doctor can perform an abortion. https://www.tmb.state.tx.us/idl/1C5CBA1C-052B-403F-A0D1-FAF22ADD05CB
No woman has been refused a life-saving abortion and no doctor has been prosecuted or sanctioned by the Texas Medical Board for performing an abortion to prevent risk to a woman’s life or impairment of bodily function. Complications of pregnancy continue to be treated in the standard manner, intervening to save women’s lives when necessary.
But, what about babies with Down Syndrome or birth defects that, it is claimed, will make the baby’s life short and miserable? And, why not provide exceptions for rape or incest?
People with Down syndrome do not deserve the death penalty. Many children with serious birth defects have lived happy lives loved by their parents. If they died early, their parents had a chance to love them and mourn their loss. There are many advocacy groups for these children. Such children do not deserve to be killed. In my book, I discuss these issues and cite statements by parents and professionals about their experiences and recommendations.
Pregnancy due to incest is a difficult and emotional topic. It almost always involves children and is technically rape. The reader is likely to be surprised to learn that very few parents recommend to abort the baby. Most babies are reared alongside their child-mothers.
Pregnancy due to rape is also a very difficult topic. The reader may also be surprised to learn that most women choose to keep the child. There are relatively few abortions due to rape. Many such children have grown to adulthood and expressed gratitude for their lives. The child does not deserve the death penalty for the heinous crime of another, although the suffering of the victim of rape cannot be discounted.
I also address the issues of incest and rape in my book in detail. I strongly suggest that the reader take the time to be well informed on these and other issues, which is the reason I published the book, to inform and educate.
Before leaving that topic, however, I must assert that abortion is never the answer that solves all problems and makes everything good again. I have researched this issue and written about the suffering of so many women in the aftermath of killing their babies. The experiences of these women are also something that people should understand before they flippantly advocate for abortion on the impulsive demand of an uninformed mother under great duress.
I will conclude this article with comments on the future of the Pro-Life movement, which I also present in a follow-on lecture to the conclusions in my book. The book ends in 2020, and the overturn of Roe in 2022 gave pro-life advocates a completely new set of opportunities. Surely, we must continue to do everything that we have done in the past, but thereby we are doing little or nothing to stem the tide of new women entering the system with despair and hopelessness due to an unplanned and unwanted pregnancy in difficult life situations.
We need to advocate for social reforms by which mothers are honored for their role in society. Pregnant women must be able to retain every benefit and opportunity in society that non-pregnant women have. At present, pregnant women in desperate life situations hear the narrative that their life will be over if they keep the baby. They will not be able to get their education; they will not be able to advance in their career; they will not be able to afford childcare; their baby will grow up unwanted and a burden on society, likely to become a criminal….and, it goes on. They are told that the responsible thing to do is have an abortion.
Also in my book, I include data obtained from the women themselves who had an abortion. They give an average of 4 reasons for having an abortion. We know what the problems are. They are complex and inter-related in many cases. We cannot fix everything, but we can fix many of the problems, and we should advocate for doing so. If we can offer real solutions to real problems, the mothers themselves will take care of their babies.
Happily, in Texas our legislature has also provided much relief for women and families, pouring hundreds of millions of dollars into the effort. In addition to federal and state programs, there are also many county programs. Hundreds of churches, pregnancy help centers, and maternity homes help fill the gaps. Nevertheless, that is not the case everywhere in the United States, which leaves us with much work to do in future through our federal representatives.
I hope the reader has learned much from this article. Please read my book for a comprehensive rendering of the history and the issues. Make your vote in the upcoming election reflect your values. To be pro-life requires you to be pro-woman, and to be pro-woman requires you to be pro-life. Let us strive to be sure that the future of our society honors our wives, our mothers, our sisters, and our daughters. Let it be said that it was our generation that started the journey back from a culture of death toward a culture of life !