Fact-checking John Cornyn's ad on Royce West and abortion

U.S. Sen. John Cornyn, R-Texas, released the first attack advertisement of his reelection campaign in July, targeting one of his potential Democratic opponents: state Sen. Royce West of Dallas.

West is one of several Democrats who have announced their candidacies for Cornyn’s seat. MJ Hegar, an Air Force veteran from Round Rock, and Amanda Edwards, a Houston City Council member, also are running.

In Cornyn’s commercial, titled "Their Side," a narrator describes West’s position on several issues, including abortion.

"Who is Royce West?" the narrator says. "West is a liberal politician who stood with Wendy Davis to support painful late-term abortions."

There’s no question that West supported former-state Sen. Wendy Davis in her filibuster of a bill restricting abortion during the 2013 legislative session. Cornyn’s campaign pointed us to the record vote on the legislation and to questions and comments West made to media outlets about the filibuster.

But there’s more to this claim than meets the eye.

The legislation in question was about broader issues than the cutoff for legal abortions. In addition to banning abortions from occurring past 20 weeks post-fertilization, the bill proposed strict restrictions on facilities that offered abortion services that many Democratic lawmakers worried would force clinics across the state to close.

Let’s start at the beginning.

Davis filibuster relied on other Democratic support

On the last day of a specially called legislative session in 2013, Davis rose to speak at 11:18 a.m. and announced her intention to filibuster an abortion-related bill being promoted by Republican lawmakers in the chamber. The chamber needed to vote on the bill before a midnight deadline.

The legislation banned abortion procedures after 20 weeks of pregnancy and instituted a series of requirements for physicians and clinics where the procedure was performed. It required abortion clinics to meet the same hospital-like standards that exist for ambulatory surgical centers and required doctors performing the procedure to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Opponents of the bill, including Davis, said the legislation could prompt most of the state’s more than 40 abortion clinics to close their doors.

Davis spoke for more than 11 hours on the bill, becoming a political celebrity in the process.

Republican lawmakers raised points of order, accusing Davis of violating state law in her attempt to talk the bill to death, and caused members of the public who had gathered in the gallery to watch the proceedings to erupt into shouts, sending the chamber into chaos.

Democratic lawmakers raised procedural questions to run out the clock as leaders in the chamber attempted to administer a vote on the bill.

Video footage from the chamber and from different news outlets shows West involved in many private conversations with Senate leadership and other Democrats over the course of the filibuster. When the clock struck midnight, West asked the lieutenant governor to adjourn the session before voting on the bill. 

"What time does the session end? Midnight" West said from the floor. "We can’t take a vote after midnight — there’s no session."

A Texas Observer account of the evening includes a photo of West captioned: "In a hurried vote on SB 5, Lt. Gov. David Dewhurst checks his watch while Sen. Royce West waves his cell phone to show it’s past midnight."

The bill was not passed during the first special session, but then-Gov. Rick Perry immediately called another special session and the bill was refiled — called House Bill 2 — and adopted. West voted against the legislation.

West told the Associated Press that, while Democrats did not have enough votes to kill the bill in the chamber, they would pursue legal action.

"We do not have the numbers to stop it," West said. "As soon as it’s signed by the governor, it will be challenged … we believe the whole bill is unconstitutional."

The U.S. Supreme Court ruled in 2016 that the bill’s restrictions on clinics placed an undue burden on women seeking abortions. By that time, just 19 abortion clinics in the state were still operational.

The ban on abortion procedures after 20 weeks was not affected by the ruling and is still in place.

What is a late-term abortion?

Cornyn’s advertisement discusses West’s stance on abortion, in particular his alleged support of "painful late-term abortions." But there are a few problems with that characterization.

Cornyn’s campaign pointed to a Washington Post article that stated: "‘Late-term’ abortions are generally understood to take place during or after the 21st to 24th week of gestation, which is late in the second trimester."

The article went on to say that there is no precise medical or legal definition for the phrase, a point echoed by Kate Connors, a spokeswoman for the American College of Obstetricians and Gynecologists, in an email.

Connors pointed to a fact sheet from the American College of Obstetricians and Gynecologists that states abortions that occur after 21-weeks post-fertilization account for slightly more than 1 percent of all abortions that take place in the United States.

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A woman holds a sign that says, “I want my daughter to have the right to abortion that I didn’t have.”

They said many of these procedures occur when a fetus is found to have anomalies "incompatible with life," where "death is likely before or shortly after birth." 

Connors pointed to a different fact-sheet exploring the potential for a fetus to experience pain. 

"A human fetus does not have the capacity to experience pain until after viability," the sheet reads. "Rigorous scientific studies have found that the connections necessary to transmit signals from peripheral sensory nerves to the brain, as well as the brain structures necessary to process those signals, do not develop until at least 24 weeks of gestation."

In its 1973 Roe v. Wade ruling that legalized abortion nationwide, the U.S. Supreme Court held that states could enact restrictions on abortion procedures after "fetal viability" — anywhere from 24 to 28 weeks post-fertilization.

Do Davis and West support late-term abortions? 

Davis went on to run for governor in 2014 (she lost to Republican Greg Abbott), and throughout her campaign she faced questions about her filibuster and inaccurate characterizations of her stance on abortion.

In October of 2013, Texas Right to Life aired a radio advertisement that said "Wendy Davis opposes any limits on abortion." We rated that claim False.

Bo Delp, the spokesman for her campaign at the time, told PolitiFact that Davis "opposes late-term abortions except when the life or health of the mother is endangered."

This supports a comment that Matt Angle, an adviser to Davis, made to the American-Statesman around the same time.

He said her filibuster was not "about the 20-week ban" included in the legislation.

"She was thrust into a fight over whether or not Texas women would have access to health care or not, and the leadership in the Senate insisted upon adding to that severe restrictions to basic health care," Angle said. "She’s against late-term abortion except in cases of rape, incest, the life and health of the mother or when there are profound and serious non-reversible problems with the fetus."

West’s campaign did not return return multiple requests for comment over a two-week period about his stance on "late-term abortion" and his role in Davis’ filibuster.

Our Ruling

An advertisement from Cornyn’s campaign said that West, one of his Democratic challengers, stood with Wendy Davis "to support painful late-term abortions."

It’s true that West supported Davis in her effort to kill a bill that would ban abortions at 20 weeks post-fertilization, but the legislation did much more than that. Opponents worried that it would close abortion clinics, which offer other health care services to women.

Davis has said she opposes late-term abortions and officials with her team said she filibustered the legislation because it would force clinics to close — which it did.

We rate this claim Half True.