Jessica Valenti warns us.
Texas Republicans are poised to pull a fast one: They’ve convinced Democrats and doctors to support a bill they claim will protect life-saving abortion care and ‘clarify’ the state’s ban. But the rapidly advancing “Life of the Mother” legislation is a Trojan Horse—there’s a 100-year-old ban hiding inside, ready to be revived and used to prosecute abortion funds, helpers, and possibly even patients.
Legal experts I spoke to in Texas called it “the most dangerous” anti-abortion bill currently before the legislature. So how has this flown under the radar?
Blame a mix of GOP sleight-of-hand and pro-choice politicians so eager for a win—and so desperate to ease the suffering of Texas women—that they’ve missed the fine print. To be fair, it’s not an easy catch: What’s happening is buried in a maze of dense language and historical statutes. I’m going to do my best to lay it out for you, so please stick with me—this one really matters.
Chances are, you’ve heard about Senate Bill 31: It’s been framed as Republicans’ oh-so-generous move to ensure doctors can provide life-saving abortions without fear of civil or criminal charges. Texas newspapers and national headlines describe it as a bill that will “expand protections” and “clear confusion” around the state’s ban, while lawmakers on both sides of the aisle claim it will save women’s lives. The Texas Medical Association has endorsed the bill, as have anti-abortion groups.
In short, SB 31 is being sold as a rare moment of bipartisan agreement—a good-faith effort to help doctors and patients.
The truth, however, is that Republicans are exploiting Texans’ desperation to stop women from suffering and dying—using that urgency to pass a law that will ultimately broaden their power to punish.
At the heart of this deception is a 1925 abortion ban. This Texas law made performing an abortion a felony unless it was done to save the patient’s life. But unlike the state’s modern bans, the century-old law also made it a felony to help someone “procure” an abortion—and it didn’t explicitly protect patients from prosecution. (Remember this for later.)
Obviously, this 1925 ban was unenforceable for decades under Roe v. Wade—but after Dobbs, Texas Republicans argued it could go back into effect. Attorney General Ken Paxton, in particular, was eager to use the law: the same day Roe was overturned, he issued an advisory declaring the 1925 ban enforceable—and repeated the claim in an updated advisory three days later.
Why was he so eager to dust off a 100-year-old law? In part, because it would let the state start prosecuting people immediately. (Texas’ trigger ban couldn’t be enforced until the Supreme Court issued its formal judgment in Dobbs, which could take months.) But more importantly, Paxton knew that reviving the century-old ban would dramatically supercharge his ability to prosecute. Remember, the 1925 law would explicitly allow Paxton to prosecute abortion funds that help patients ‘procure’ care, and open the door to targeting patients.
What Republican legislators did next made it even clearer that the punishment was always the point: the ultra-conservative Texas Freedom Caucus started sending threatening letters to companies that promised to reimburse employees for out-of-state abortion travel—citing the 1925 ban. They also targeted abortion funds, warning that donors, employees, and volunteers could be prosecuted under the 100-year-old law.
Thankfully, Texas funds sued to stop that from happening. Paxton lost the legal battle in 2023, when a federal court ruled that the zombie ban had been “repealed by implication.” (Translation: you can’t enforce a nearly century-old ban when newer laws have already replaced it.) And while Paxton and Texas Republicans continued to claim the old ban was still on the books, that federal ruling blocked them from enforcing it.
You have to imagine Paxton was livid—abortion funds are the ones helping patients access out-of-state care and abortion pills, and the court had just shut down his best shot at punishing them for it.
That brings us to the present day, where Republican legislators have figured out how to give Paxton exactly what he wanted: the legal firepower of that 1925 ban.
Here’s how it works. The “Life of the Mother” bill—the one Republicans claim will clarify Texas’ abortion ban—wouldn’t just amend the current law. SB 31 would also add so-called ‘clarifying’ language to the 1925 ban. Why? Republicans will say they’re just being thorough—protecting women and doctors in every abortion statute. But here’s what they won’t admit: amending the 100-year-old law negates the argument that the ban is no longer in effect. (At least, that’s what they’ll argue in court.)
In other words, anti-abortion politicians get the best of both worlds if this bill passes: they get to look like they give a shit about women’s health and lives, while expanding the state’s power to punish.
The Chron editorial board also sang the praises of SB31, though they did note that they had heard of the concerns regarding that 1925 law. They just mentioned it in passing, though, so either they don’t take that concern seriously – and to be fair, it is at least possible this is correct – or they didn’t hear this from someone who did see the danger.
I will note two things. One is that the author of SB31 is Sen. Bryan Hughes, who was the author of 2021’s SB8, the vigilante bounty-hunter anti-abortion bill that turned out to be the tip of the Dobbs iceberg, and also of the omnibus voter suppression bill, which is still being picked apart by the courts today. Hughes is smart and competent, which given his extremist views makes him highly dangerous. We can’t help what the newspaper editorial boards do, but I really hope someone is explaining the danger to legislative Democrats. They won’t be able to stop SB31, but they need to know how to attack it and they need to commit to not voting for it if this 1925 law provision remains.
And two, regardless of what happens with SB31, there are lots of other attacks on abortion access in the hopper, with several of them having broad and far-reaching potential consequences for abortion pills and online advocacy. Again, the Republicans have the votes to pass any bill they want. All I’m saying is, don’t give up the moral high ground. It’s all we’ve got. The Observer has more.
If enough women cared, we would not have Republicans leading the state.