Texas Senate Bill 5

Texas Senate Bill 5 was a bill in the Texas Senate in 2013 that involved adding restrictions to abortion access within the state. The bill was to be voted on in a special session of the state senate on June 25, but Democratic state senator Wendy Davis conducted an eleven-hour filibuster to prevent the senators from voting on the bill before the midnight deadline.

However, the bill eventually passed as House Bill 2 (HB2) in July of that same year. The restrictions imposed by that bill were challenged in the US Supreme Court case Whole Woman’s Health v. Hellerstedt in 2016. The court ruled that HB2 placed an undue burden on women seeking legal abortions, and it was thus ruled unconstitutional.

Background

The Texas State Legislature had adjourned on May 27, 2013. However, then Texas governor Rick Perry, a Republican, called the legislators back to a special thirty-day session in an attempt to pass stricter abortion laws.

The bill that was being considered was known as Texas Senate Bill 5. The bill would ban abortions after twenty weeks gestation. The bill did not include exceptions for women who had been raped or who had experienced incest. It also required that abortion clinics have standards similar to surgical centers and that doctors who perform abortions have admitting privileges at nearby hospitals, meaning that the doctors would be allowed to admit patients at the hospital.

Proponents of the bill—including Texas Republicans, who had the majority in both the Texas House of Representatives and the Texas Senate at the time—claimed that these provisions were intended to make abortions safer for women. However, abortion rights activists and reproductive justice groups did not agree. They estimated that of the forty-two abortion clinics in the state that were open at the time, only five would be able to remain open if the bill passed. The clinics would have to close because the renovations needed to meet the standards of hospital-style surgical centers would be far too costly for most clinics to afford. Having only five clinics in a state the size of Texas would make it extremely difficult, if not impossible, for some women, especially poor women, to access abortion services.

The bill passed out of the Texas House of Representatives on Monday, June 24. Texas Senate Democrats then decided to fight back against the bill by filibustering. A filibuster is a political tactic in which the party in the minority attempts to block legislation by speaking for hours to delay a vote on a specific bill by running out the clock.

The Democrats chose Wendy Davis to conduct the filibuster. Wearing pink sneakers, Davis took to the Texas Senate floor. She spoke for a total of eleven hours. Despite being accused of violating the senate rules several times, Davis was able to head off a vote until after the midnight deadline.

The filibuster garnered nationwide attention, making Davis a political celebrity across the country. The hashtag #standwithWendy was even trending on Twitter. Davis and the Democrats considered the blocking of Texas Senate Bill 5 a victory. Still, the Republican legislature and Governor Perry were not willing to give up.

Overview

Governor Perry called a second special legislative session the day after the filibuster, June 26, 2013. This time the Republicans passed a new version of the bill, known as House Bill 2 (HB2), in both houses in mid-July. Governor Perry signed the bill into law on July 18, 2013. The passage of HB2 made Texas’s abortion laws some of the most restrictive in the nation. The bill had a devastating effect on abortion clinics across the state. Over time, twenty-seven of Texas’s forty-two abortion clinics were forced to close.

Before long, however, the bill would be challenged in court. In April 2014, the Center for Reproductive Rights filed a lawsuit on behalf of several Texas abortion clinics, doctors, and patients. The lawsuit alleged that the requirement of clinics to have hospital-like surgical center facilities and for physicians to have admitting privileges at local hospitals put an unfair burden on women seeking access to safe and legal abortions, a right that the US Supreme Court found to be constitutional in Roe v. Wade (1973).

The case wound its way through the federal court system during the next two years. Finally, it reached the US Supreme Court in June 2016. In Whole Woman’s Health v. Hellerstedt, the plaintiffs, one of them being the Whole Woman’s Health abortion clinic, argued that HB2 placed an undue burden on Texas women who were seeking abortions. Many of these women would have to travel great distances to receive care. Others might not be able to afford the cost of traveling out of their county to find an abortion provider.

In a five-to-three decision (the court had only eight justices at the time due to the death of Antonin Scalia earlier in 2016), the Supreme Court ruled that the provisions outlined by HB2 did place an undue burden on women and was, therefore, unconstitutional. The court held that the extra requirements of admitting privileges and renovating clinics into surgery-like centers did not provide any additional protection to women seeking abortions.

In her concurrence with the majority opinion, Justice Ruth Bader Ginsburg discussed how an undue burden in accessing abortion like that created by HB2 could affect women in desperate circumstances, putting their health and lives at risk.

Despite the victory for reproductive justice advocates at the Supreme Court, the damage in Texas had already been done. Five years after Davis’s famous filibuster, only three of the twenty-seven shuttered clinics had managed to reopen, including one Whole Woman’s Health clinic. Many clinics could not reopen because the cost would be too great. Many people who had worked at those clinics had already moved on to other employment. An expert from Planned Parenthood told the Texas Tribune in 2018 that she believed it would take another ten years before Texas would be able to rebuild the network of abortion providers that had been available in the state prior to the passage of HB2.

In 2021, Texas passed The Texas Heartbeat Act (SB 8) which banned most abortions after a fetal heartbeat is detected, which can occur as early as six weeks. Texas also made it a felony to perform an abortion, punishable with up to life in prison. After the Supreme Court overturned Roe v. Wade in 2022 with their decision in Dobbs v. Jackson Women's Health Organization, the power to set rules around abortions reverted to the states, making the new Texas law more likely to stand. In 2024, a Texas Supreme Court rejected a challenge to the law where twenty women alleged the law prohibited them from getting the complex medical care they needed. 

Bibliography

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Rosen, Taylor. "House Bill No. 2 (Eighty-third Texas Legislature). Texas State Historical Association, 19 Nov. 2022, www.tshaonline.org/handbook/entries/house-bill-no-2-eighty-third-texas-legislature. Accessed 31 Jan. 2025. 

Weissert, Will. “Perry, Filibuster Star Clash over Texas Abortions.” San Diego Union-Tribune, 27 June 2013, www.sandiegouniontribune.com/sdut-perry-filibuster-star-clash-over-texas-abortions-2013jun27-story.html. Accessed 30 Jan. 2025.

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