Texas’ “Life of the Mother Act”: A Wolf in Sheep’s Clothing?

The Texas legislature is considering a bill that purportedly aims to clarify the state’s near-total abortion ban. Texas law currently bans abortion at any time during pregnancy unless the pregnancy places the pregnant person “at risk of death or poses a serious risk of substantial impairment of major bodily function.” Violations of the law can result in a felony conviction, up to 99 years in prison, and at least $100,000 in civil penalties.

The medical emergency exceptions in the laws of Texas and other states with similar abortion bans have been roundly criticized by patients, health care professionals, organizations, and legal scholars as vague and too narrow. As a result, some providers feel forced to delay medically necessary care until a patient is on the “brink of death.” In practice, the current Texas law codifies cruelty and forces health care professionals to violate their obligations to “do no harm” and act in the best interests of their patients. As this article explains, however, the bill proposed to allegedly “fix” these issues not only falls short, but creates new and even more concerning problems, such as the potential for pregnant persons to be criminalized.

Last year, the Texas Supreme Court ruled that the exceptions in the existing law were not too vague. And while the Texas Medical Board issued guidance that sought to clarify the abortion ban, the Board refused to provide a list of specific medical conditions that would fall under the exception. In apparent response to growing criticism, concern, and evidence that the law was harming Texas patients, Republican state Senator Bryan Hughes introduced SB 31, the “Life of the Mother Act.” The legislation has been misleadingly depicted as “expand[ing] protections in emergencies,” “giv[ing] doctors more leeway to end pregnancies during medical emergencies,” and “clear[ing] confusion” about when the exceptions apply.

The likely impact of the legislation, if enacted, is far less promising. First, the bill does not go far enough to protect women facing pregnancy-related medical emergencies. For example, it does not add exceptions or otherwise expand the law to provide other important exceptions, such as for victims of rape or incest. A second and perhaps more important (yet woefully underdiscussed) consequence of this bill is its potential to resurrect a century-old abortion law that would actually broaden the state’s ability to punish those who assist pregnant people seeking abortions and potentially the pregnant persons themselves. This law was at the heart of the decision in Roe v. Wade, in which the U.S. Supreme Court struck down the law and established the constitutional right to abortion.

Under Texas’s pre-Roe law, in addition to criminalizing the performance of an abortion on a pregnant person, it was also a crime for anyone to “furnish the means for procuring an abortion.” This language meant that anyone who aids a pregnant person in obtaining an abortion, such as by providing funds, transportation, or other assistance, could be subject to criminal liability. The bill also did not include language that explicitly exempts the person who has the abortion from facing criminal charges, important language that all existing abortion laws currently include, although a number of states have started to consider laws that would punish pregnant people.

After the Supreme Court overturned Roe in 2022, Texas Attorney General Ken Paxton tried to enforce the pre-Roe ban. That attempt was blocked by a federal judge in 2023, who concluded that the pre-Roe ban had been “repealed by implication,” which occurs when a new law conflicts with an older law, effectively canceling out or “repealing” the old law without explicitly stating so. But SB 31 amends the pre-Roe law, which opens the door for Paxton and others to argue that amending the law negates the argument that the law has been “repealed by implication.”

Why has this gotten so little attention? Eager to gain bipartisan support, Texas Republicans portrayed this bill as an act of good faith and as a means to protect the lives of pregnant people. And Democrats, although critical that the bill did not go far enough, might be satisfied to do something, anything to ease the state’s extreme abortions restrictions. Moreover, the text of the law, on its face, does not make clear that it may resurrect the pre-Roe law, making the full consequences of passing the bill easy to miss. But make no mistake, this bill may actually be tightening abortion controls, not empowering physicians or protecting patients.

Make no mistake, this bill may actually be tightening abortion controls, not empowering physicians or protecting patients.

And the problems with SB 31 do not end there. Another controversial aspect of the legislation is that it would require Texas physicians to take a state-mandated education course on the Texas abortion law. While this may seem like a positive development, the law places the development of the education in the hands of the State Bar of Texas, yet another opportunity for lawyers to infiltrate the bedside and inject a more conservative viewpoint to patient care. In fact, such “med ed” bills are routinely supported by anti-abortion organizations like Susan B. Anthony Pro-Life America.

Patients, health care professionals, and reproductive justice advocates should not be fooled by SB 31. Not only is the bill far from a panacea for pregnant people facing medical emergencies in Texas, it may actually do more harm than good. Tragically, women like Josseli Barnica and Nevaeh Crain have already paid the price of Texas’s dangerous abortion laws with their lives. How many more must die or suffer before the Texas legislature enacts meaningful change?

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About the author

Allison M. Whelan, JD, MA Bioethics, is an assistant professor at Georgia State College of Law, and an affiliate at the Center for Bioethics at Harvard Medical School.