Texas 2023 HB 2709
Overview
Texas 2023 HB 2709
and SB 2198 (identical)
Filed by Texas State Representative Bryan Slaton
and
Texas State Senator Bob Hall
Provides Equal Protection to Preborn Children
If we truly believe that a fetus is a person made in the image of God, then to be consistent with the Constitution and God’s word, the laws which protect human beings who are born must equally protect those who are not yet born.
“No state shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, 14th Amendment.
“There are inconsistencies between Fourteenth Amendment status and the typical abortion statute. If the fetus is a person, why is the woman not a principal or an accomplice? If the fetus is a person, may the penalties be different?” Supreme Court of the United States. Roe v. Wade, 410 U.S. 113, 157-58 n. 54 (1973).
“Abolish abortion by ensuring the right to life and equal protection of the laws to all preborn children from the moment of fertilization, including adopting effective tools to ensure the enforcement of our laws to protect life when district attorneys fail to do so.” Current Republican Party of Texas Legislative Priority.
“We believe in the sanctity of innocent human life, created in the image of God, which should be equally protected from fertilization to natural death.” Current Republican Party of Texas Principles.
“Equal Protection for the Preborn: We urge lawmakers to enact legislation to abolish abortion by immediately securing the right to life and equal protection of the laws to all preborn children from the moment of fertilization, because abortion violates the US Constitution by denying such persons the equal protection of the law.” Current Republican Party of Texas Platform Plank #36.
“So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets.” The Golden Rule. Matthew 7:12.
“You shall love your neighbor as yourself.” Mark 12:31.
“You shall not be partial in judgment.” Deuteronomy 1:17.
Does the bill criminalize women?
No. The bill criminalizes the act of knowingly and willfully causing the death of a preborn child.
To deter such conduct and to provide equal protection of the laws, the bill does prohibit everyone, including pregnant mothers, from engaging in the unlawful act of prenatal homicide.
Once the bill is passed and becomes effective, the justice system would determine on a case-by-case basis whether any report of suspected prenatal homicide would be investigated and prosecuted and for what charge, and whether anyone would be convicted and sentenced. This justice system includes:
Law enforcement
Prosecutors
Grand juries
Trial juries
Judges
Multiple appellate courts
The governor
All defendants would have the right to an attorney, the right to remain silent, and all other constitutionally required due process. The state would bear the burden of proving its case beyond a reasonable doubt.
Finally, before any sentence could be imposed upon any defendant, the people participating in that justice system process would be required to be in nearly unanimous agreement that the process and outcome were just.
FAQs
Didn’t the Human Life Protection Act (the “trigger bill”) already effectively outlaw abortion in Texas?
Sadly, no. It only outlawed assisted abortions.
The Human Life Protection Act allows pregnant mothers to “self-manage” their own abortions. This also means that, up to a point, it remains legal for others to pressure pregnant mothers into aborting their babies.
Mothers in Texas are now obtaining abortion pills to perform DIY abortions at home.
The following video is from a pro-abortion service helping women obtain abortion pills.
As of February 2023, since the 2021 Texas Heartbeat Bill and 2022 Dobbs decision, studies indicate that overall abortions for Texas women have declined by only 5.4% roughly (52,177 estimated annually down from 55,175 in 2020). Of these, an annual estimate of 32,916 (63%) take place at out-of-state clinics, while 19,260 (37%) take place in Texas using abortion pills ordered online.¹
According to the New York Times, “As states banned or restricted abortion this summer, the number of American women ordering abortion pills from overseas jumped significantly — enough to offset most of the drop in legal abortions. Overall, abortion in the United States declined about 2 percent…”
Footnote 1: See Aiken, Abigail RA, Jennifer E. Starling, James G. Scott, and Rebecca Gomperts. “Requests for self-managed medication abortion provided using online telemedicine in 30 US states before and after the Dobbs v Jackson Women’s Health Organization decision.” JAMA 328, no. 17 (2022): 1768-1770. See also White, K., A. Dane’el, E. Vizcarra, L. Dixon, K. Lerma, A. Beasley, J. E. Potter, and T. Ogburn. “Out-of-state travel for abortion following implementation of Texas Senate Bill 8.” Tex Policy Eval Proj (2022).
Would the bill prohibit IVF?
No. Fertility specialists may perform in vitro fertilization, but their procedures must not willfully destroy human beings. This would require a change in procedure for any IVF clinic where the current practice creates a large number of human embryos and then destroys the excess. You can learn more about this and other IVF issues here.
Would the bill ban contraceptives?
No. The bill does not ban contraceptives (i.e. drugs or devices to prevent fertilization). The bill would ban the use of abortifacients after fertilization if knowingly and willfully used to cause the death of the child.
Could anyone who has been involved with an abortion in the past be prosecuted?
No. Section 5 of the bill explicitly prohibits retroactive enforcement, as do the Texas and U.S. constitutions.
Could the bill punish women who have had miscarriages?
No. Nothing in the bill would in any way apply to accidental or natural deaths.
Could a mother forced into an abortion be convicted?
No. Section 2 incorporates all of the Texas Penal Code, including Section 8.05. A mother forced into an abortion by duress is not subject to criminal liability. Instead, the bill would allow for prosecution of the person who forced or pressured her.
Would the bill allow doctors to deal with life-threatening medical emergencies like ectopic pregnancies?
Yes. Section 3 explicitly allows for that.
SECTION-BY-SECTION
Bill Section 1
Texas law already defines personhood from fertilization. This section recites that definition and makes a minor change to ensure it applies to all unborn children from fertilization.
Bill Section 2
The term “individual” or “person” in the Texas Penal Code already applies to unborn children. This section simply reiterates that the provisions of the Penal Code apply whether the victim has been born yet or not.
As this section implies, just as it is illegal to encourage or pressure someone to murder a born person, the effect of this bill also makes it illegal to encourage or pressure a mother to abort. A person who did so would also become a party subject to prosecution. See Texas Penal Code §§ 7.01, 7.02.
This section also means that all existing due process protections for those accused of homicide of a born person would also apply to those accused of homicide of an unborn person, such as:
Presumption of Innocence. A person is presumed innocent until the state proves beyond a reasonable doubt that the person is guilty.
Mistake of Fact Defense. A person who misunderstands a material fact of what they are doing is not guilty if such mistake negates the existence of the mental state required by the offense.
Duress Defense. A person who commits a criminal act under threat of serious physical violence or death is not guilty.
Laws of Parties. Everyone willfully involved with the homicide can be prosecuted, including an abortionist and anyone who pressures the mother into the abortion.
Immunities. For example, prosecutors could grant immunity to mothers to testify against the abortionist or others.
Clemencies. The governor can exercise executive clemency and commute/reduce the sentence of or completely pardon a person, even if the person had been lawfully convicted and sentenced. See Tex. Const. Art. IV, § 11.
Bill Section 3
Medical care or treatment provided with the requisite consent by a licensed physician to avert the death of a pregnant female that results in the accidental or unintentional injury or death of her unborn child is not a crime when all reasonable alternatives to save the life of the unborn child were attempted or none were available.
This provision is consistent with the Dublin Declaration.
Bill Section 4
Texas law already defines abortion as criminal homicide and assault, and as civil wrongful death. Yet Texas Penal Code Sections 19.06 and 22.12, and Civil Practice and Remedies Code Section 71.003(c), allow for mothers to perform self-induced abortions. This bill section repeals these provisions because they deny preborn children the equal protection of the laws.
Bill Section 5
This makes it extremely clear that the bill cannot be used to retroactively prosecute people for abortions that took place in the past.
Retroactive prosecution would also violate Article I, Section 9, Clause 3 of the U.S. Constitution, as well as Article I, Section 16 of the Texas Constitution.
Bill Section 6
This provides for when the bill would go into effect.