House Bill 3994 is not about making a medical procedure safer. None of the abortion legislation before the Texas Legislature this session is about making a medical procedure safer.
It is all and entirely about preventing people from terminating unwanted pregnancies by throwing up hurdles, slowing down the process, and making it so expensive, confusing, difficult, and even risky to obtain an abortion that only the rich can exercise the right.
It is about forcing advocates and reasonable legislators to bargain about whose rights to protect, and whose to sacrifice, in some twisted calculus about making a bad bill not as bad for a subset of people as it used to be for a larger subset.
I want to talk about two of the more farcical elements of this bill: first, the ID requirement, and second, the reporting requirements. The TL;DR—the ID requirement is still a mess, it’s just a little less of a mess for some, and the reporting requirements are the legislative equivalent of sending Rep. Jonathan Stickland to wag his finger in your face while you try to follow the rules holding onto some semblance of privacy and dignity.
Yesterday, Senator Perry pulled HB 3994 from the Senate agenda, concerned about the constitutionality of a provision requiring doctors to treat any person seeking an abortion as a minor unless they could produce a valid government issued ID, thus forcing people without valid government issued ID to undertake the judicial bypass procedure in order to get legal medical care.
Before pulling the bill, in hearings leading up to this point, Republicans had refused to offer any guidance as to what, exactly, constituted a “valid government issued ID.” Texas laws about showing ID to vote are exceptionally clear about what ID is and is not valid for those purposes, and Republicans had no problem spelling that out, but refused, when asked, to do the same for this legislation.
HB 3994 returns today, on the Senate agenda, with new language designed to thwart that particular constitutional challenge. Not, mind you, new language to protect people. The sole reason for changing this language is to calibrate exactly who can and who cannot obtain an abortion with one eye on what will happen when it is challenged in court.
To “clarify” what ID is required, the bill has been amended to refer to the Texas Family Code §2.005(b), which lists the forms of ID that can be used when obtaining a marriage license. A few of the options:
(1) a driver’s license or identification card issued by this state, another state, or a Canadian province that is current or has expired not more than two years preceding the date the identification is submitted to the county clerk in connection with an application for a license;
(2) a United States passport;
(3) a current passport issued by a foreign country or a consular document issued by a state or national government;
(4) an unexpired Certificate of United States Citizenship, Certificate of Naturalization, United States Citizen Identification Card, Permanent Resident Card, Temporary Resident Card, Employment Authorization Card, or other document issued by the federal Department of Homeland Security or the United States Department of State including an identification photograph;
(5) an unexpired military identification card for active duty, reserve, or retired personnel with an identification photograph;
(6) an original or certified copy of a birth certificate issued by a bureau of vital statistics for a state or a foreign government;
So, if you have your Mexican driver’s license, or driver’s license from any country other than the United States or Canada, you are out of luck. Why do Canadian licenses get a special mention? Why not the other nation with which we share a border, Mexico?
You can use a passport, but how many undocumented Texans do you think walk around with valid passports from their country of origin?
HB 3994 is as discriminatory as it ever was when it comes to undocumented people seeking abortion. As Texas has demonstrated again and again, however, officially, we’re a-OK treating undocumented people as less than human, less deserving of rights, medical care, or any other basic human right.
HB 3994’s reporting requirements have been toned down from their initial requirement that statistics be kept on which judges were granting or denying bypass requests. Legislators had to acknowledge that reporting turned judges doing their job and obeying the law into targets for violent anti-abortion extremists.
Still, however, HB 3994 increases reporting requirements and puts applicants’ names and addresses in court records. Are they supposed to be kept confidential? Yes. Does it make a difference safety-wise in how the medical procedure is conducted whether the names are tracked or not? No.
It is singularly ironic to note that Sen. Charles Perry, the Texas Senate sponsor of the bill, successfully amended House Bill 2633 so that the names of accident victims will be kept confidential.
If it becomes law, the change would be significant – keeping secret information that historically has been public in Texas, and is used to correctly and accurately report the news and events of public interest.
Under the amended bill, only the location of the accident, the date, the time and the make and model of the vehicles involved could be made public.
Sen. Charles Perry, R-Lubbock, amended House Bill 2633 – which was designed to keep the information on involved parties from becoming victims of ambulance-chasing lawyers and scam artists – to block most accident information from release to the public or to the media.
Perry said he wanted thought the change was appropriate to protect the privacy of people involved in accidents. “Privacy seems to be an endangered species in our time,” he said. “Technology has made it an endangered species.”
If Senator Perry thinks privacy is an endangered species, then by supporting HB 3994, he’s essentially applied for a special license to hunt some people’s privacy, if those people deign to exercise their constitutional right to terminate a pregnancy.
People seeking judicial bypass do so because they have no other options. They are often victims of abuse and violence. Creating a permanent government record can compromise their safety. They know that, judges know that, and the legislators behind this bill know that. But still, they insist upon leaving additional reporting requirements in the bill, knowing that it is an intimidation tactic through and through.
Let’s stop the farce. None of this is about safety. None of this is about health. All of this is about trying to find the least-unconstitutional way to stop Texans from accessing abortion care.
If HB 3994 passes, and it will likely pass, and becomes law, it will be challenged in court. There are many elements in it that skate very close to the line of what is legal and permissible under Supreme Court precedent. The challenge will cost the state money, and cause confusion for the dwindling number of clinics serving a state with a population of almost 28 million.
It is bad fiscal policy, bad health policy, and flat-out wrong to pursue bills like this, but the Tea Party-driven majority in the legislature insists upon doing it. It’s a damn shame, and it is what passes for statesmanship in Texas these days.