Forgetting to Be Afraid: A Memoir

by Wendy Davis

  —

  The emotional toll of the day was difficult enough, but soon it became a battle of wits regarding points of order. Later I was told by one of my colleagues that the Republican members and the lieutenant governor had decided upon a strategy to find three points of order to end the filibuster by 11:45 p.m. so that they could call up the transportation-funding bill that was also on our schedule for the day, and at about six hours and nine minutes (and thirty-three seconds, but who’s counting?) into the filibuster, the first point of order was called on me, leading to the first of three strikes that I would receive that day. When that happened, I knew I was going to have a real challenge on my hands. This was not the practice of the Texas senate. I was not receiving the deference typically given to a fellow senator on the rare occasions when filibusters occur. And I was pissed.

  —

  My first strike came at 5:27 p.m., when I began to talk about how in 2011 the Texas legislature had voted to cut $77 million from funding for family-planning services and how, as a consequence of that, about sixty clinics had closed in Texas and many women had lost the only access to health care that they had ever known. It was particularly severe in some of our far-removed lower-income areas of the state, like the Rio Grande Valley. I was talking about the fact that by removing the contraceptive care, the cancer screening, the screenings for sexually transmitted diseases, Texas women were actually facing unplanned pregnancies in ways that they hadn’t in the past, because the means of empowering themselves not to become pregnant had been taken away from them. Senator Robert Nichols called a point of order on the “germaneness” of the topic of abortion prevention to the bill itself, which seemed completely absurd to me, but after a brief debate about it (and I mean brief—just over two minutes), the presiding officer, Lieutenant Governor David Dewhurst, ruled in favor of the point of order. My first strike had been called. The ruling stunned me.

  Never before in the history of the Texas senate had this ever happened during a filibuster. Even reading from a phone book had been allowed. But for me, because my Republican colleagues had predetermined that they were going to strategically find a way to end the filibuster, they applied the rules in an extreme manner. And then not only were they applying them as they had never done before, they weren’t even applying them in a way that was true to the spirit of the rule. To make an argument that discussing the lack of access that women in Texas now had to preventive care somehow was not relevant to the topic of what would happen with an increase in unplanned pregnancies in Texas and therefore the need for abortion services—it was absurd. Quite a bit of debate followed that first point of order, and several of the senators who had been there for many years made note of the fact that in all their time in the senate they had never observed the application of the rules in a filibuster in the harsh way that it was being applied to me.

  I took a deep breath. My resolve strengthened.

  It was only the beginning.

  —

  The second point of order was called a little over an hour later at 6:35 p.m. by Senator Tommy Williams when a colleague helped me put on a back brace. I’d been rubbing my lower back, pushing on it as I was walking around my desk to try to relax the muscles that were so tight, and someone on my staff had run out to a drugstore and bought a back brace for me. Normally a messenger would bring something over to your desk for you—they’re the only ones allowed to go inside the railing on the senate floor—but my colleague Senator Rodney Ellis, who sits right behind me, saw my staff member coming with the back brace, and rather than have it come to me via messenger, he just went over to the rail, got it from my staffer, and handed it to me. When I started to have trouble putting it on—keep in mind I have to keep my microphone in my hand and I have to keep talking!—he proceeded to try to help me.

  Of course, what had been happening throughout the day was that my Republican colleagues would leave the floor and huddle and try to figure out how they were going to get the three strikes that would be needed under the senate rules of parliamentary procedure in order to bring an end to my filibuster. This strike was not immediately called. Instead, only after a group of my colleagues had left the floor, schemed, and then returned to challenge Senator Ellis’s assistance under the rule that says you may not be assisted during a filibuster, a point of order was called over forty-five minutes later. What the rule was intended to prevent was what happens in the U.S. Senate—there can be no taking turns, no “assisting” the senator who has begun the filibuster of a bill. You have to be the person to do it, and someone can’t relieve you and then take over. But in their desperation to find their three strikes, several of my Republican colleagues argued that Senator Ellis’s act of helping me to tighten this back brace was “assisting a senator during a filibuster” and should therefore count as my second strike. At 7:24 p.m., after Senator Williams first rose to make his point of order, the chair, having called for a vote on Senator Williams’s point of order, announced there were seventeen “ayes” and eleven “nays” to uphold it. I had my second strike.

  After the second strike, I started getting even madder. And getting mad made me forget about everything going on around me. I wasn’t thinking about my back anymore. I wasn’t hearing or noticing people on the floor anymore. I was solely focused on not getting that third strike. My mind was racing, trying to stay ahead of their next move, all while making sure I continued to talk. And while I talked I had to think of what topic I would move on to next, leafing through my binders to try to figure out what would be the safest subjects that would be the least likely to draw another one of their preposterous points of order.

  I was also getting nervous. I still had several hours to go, and I realized that they were playing a whole different kind of ball game than had ever been played when it came to a senate filibuster, and that they were watching me with eagle eyes to try to find some way to call the third strike on me. In fact, I could tell that they had actually assigned a Republican senator to take a certain period of time in the day when that senator would be uniquely responsible for watching my every move. I could even tell whose turn it was—I would be talking and looking around the room, and then I’d notice that one of my Republican colleagues was not taking his or her eyes off me. My Democratic colleague Senator Judith Zaffirini expressed her outrage about the ridiculous and unfair degree to which the rules were being enforced—and how the spirit of the process was being disrespected and compromised, though to no avail:

  In the twenty-seven years that I have served . . . I saw, firsthand, the traditions of this senate to support and to honor a person who was engaged in a filibuster, regardless of what side a senator was on. The question today focuses on specifically Article 4 of our rules, “Decorum and Debate of Members of the Senate, Members to Address the President.”

  This is the rule, and the only essence of this rule: “When a Senator is about to speak in debate or to communicate any matter to the Senate, the member shall rise in his or her place and address the President of the Senate.”

  That. Is. The. Rule. There is no other part of this rule. Allow me to repeat it: “When a Senator is about to speak in debate or to communicate any matter to the Senate, the member shall rise in his or her place and address the President of the Senate.”

  Everything that Senator Davis has done is consistent with that rule. Now, granted, there is an editorial note. But it is only an editorial note. Allow me to read that to you: “A member who desires to speak on a pending question should address the chair and, having obtained recognition, may speak, in an orderly and parliamentary way, and subject to the rules of the Senate, as long as he desires.”

  Everything that Senator Davis has done is consistent with that editorial note. Now, there are notes on two rulings. Those rulings were given forty-four years ago, in 1969. They are not rules, they are simply notes about another lieutenant governor’s rules in 1969—again, forty-four years ago. The first note is this: “When
a member has been recognized and is speaking on a motion to re-refer a bill, he must stand upright at his desk and may not lean thereon.”

  Senator Davis has not leaned on her desk, and you know it, because many of you are watching her every move. Her every move. She has not leaned on her desk. The other note is this: “When a member has the floor and is speaking on a bill or resolution, he must stand upright at his desk and may not lean or sit on his desk or chair.”

  Senator Davis has not leaned on her desk. She has not sat on her desk. She has not sat on her chair. And I might note, Mr. President, she’s a woman. The note refers to “his desk,” “his chair.” So I would argue that this rule does not apply to Senator Davis.

  So, members, let’s be literal about this. Let’s be fair. Let’s honor the tradition of the Texas senate. And let’s abide by the letter of the rule. Open your book. Look at your rules. Read it, and understand that everything Senator Davis has done is consistent with the rule of the senate. Please read the rule, realize how specific it is, and honor this member, and honor the tradition of the senate. Senator Davis, I applaud you for your understanding of the rules, and for your being consistent with them in every way. Thank you for your leadership.

  —

  My staff now worried that I shouldn’t keep reading people’s stories—we had enough stories that I could have read them for the remainder of the time, but they were afraid that my doing so would be challenged as somehow being “off topic”—so then we all started scrambling. Many of my Democratic senate colleagues were coming to me saying, “What else do you need? What can we bring you to read?” And I would give them suggestions of what I thought might be the most pertinent material that we could defend against a point-of-order challenge. Which worked for a while because their strategic help was successful at keeping me tightly on topic. I even felt I was starting to hit my stride as I spoke:

  But you can imagine, or maybe you can’t, how a woman feels to be told that her feelings on these issues, that no matter how difficult, no matter the circumstances that she’s dealing with, if she can’t fit into every one of these little square pegs that she’s going to be asked to fit into by this bill, she is not going to be able to exercise her constitutional right. And what’s so disturbing is that we don’t seem to care. And maybe that is because so many of us on this floor have never ever had to face that and never will face it, because you don’t have the equipment. And I’ve got it, and my daughters have it, and other women that I care about have it, and women who I don’t know have it. And what I know for a fact is that each of them has a unique circumstance that’s going to be impacted directly by virtue of the provisions of this particular bill.

  Only two hours and and seven minutes would elapse until the third point of order was called on me at 9:31 p.m. As ridiculous as the first two were, the third point of order called was a complete travesty. I had begun referencing the sonogram bill that the legislature had passed in the prior session, which I argued was also an intrusion on access to safe, legal abortion. The point I was trying to make was that, layered on top of that law, which requires women to have a transvaginal sonogram twenty-four hours prior to an abortion procedure, the bill we were debating would create such an impediment to women that we were literally violating their constitutionally protected right to access safe, legal abortion care. So, like any good lawyer, I was constructing my case—starting by going back in time to 2011 when it all began and building to my crescendo to show how all these things, taken together, were creating a patent violation of that constitutionally protected right. But before I could finish, Senator Donna Campbell jumped up and called that point of order, and, at 10:03 p.m., with some discussion, the chair ruled it valid.

  When my third strike was officially called, the gallery erupted. A woman in the gallery shouted, “Bullshit!” For more than a minute, the audience chanted, “Let her speak! Let her speak!” Within a minute, Lieutenant Governor Dewhurst gestured to Department of Public Safety officers to clear offending members of the gallery.

  That third strike effectively ended the speaking portion of my filibuster. I’d spoken my last words. The rest was up to my colleagues.

  —

  We had almost two hours to fill before midnight. My brilliant, fast-on-their-feet Democratic colleagues took over in an attempt to eat up time on the clock. It began with a challenge to the ruling of the chair, made by Senator Kirk Watson and other Democrats. This challenge, used correctly, forces the removal of the presiding officer from the chair. With Senator Watson’s quick thinking and adept use of the rules, Lieutenant Governor Dewhurst was forced to step down from his position as presiding officer while the validity of his ruling was debated. After some time, at 10:11 p.m., it was decided by the senate majority that Senator Robert Duncan would assume the role of presiding officer and would rule on Senator Watson’s challenge. My colleagues did a masterful job of continuing to debate that ruling, creating a tremendous amount of chaos in the process. Meanwhile I had to continue standing, no leaning, no drink of water, no break—because if I did any of those things, the filibuster would automatically be ruled to be at an end, regardless of the outcome of the current ruling being debated. So I stood, adrenaline rushing through my body as I watched my Democratic colleagues, one by one, each in support of the other and with tremendous dedication and cunning, work to tick away the time.

  As they worked, I occasionally glanced at the clock behind me, just below the gallery, on the western wall of the senate chamber. Like everyone else, I was silently pleading for its hands to move. Finally, in a desperate attempt to shut down debate, someone on the lieutenant governor’s dais—perhaps Dewhurst himself—must have sent an instruction to the folks who take care of our technical issues in the chamber to turn off the microphones of Democratic senators. And so, at around 11:15 p.m., the microphones were cut off and only the ones belonging to the Republican senators would come on when they stood up to speak and demanded to be recognized and heard.

  Meanwhile, as they had been throughout the day, the people sitting above us in the gallery, under the deeply coffered ceiling and the original brass chandeliers and above the treasured collection of fifteen historical Texas paintings, were watching anxiously, hanging on every word, every argument, every tick of the clock. The gallery had been full to capacity all day, with people taking turns there to allow others an opportunity to come into the chamber. Those opposed to the bill, wearing orange STAND WITH TEXAS WOMEN T-shirts, far outnumbered the few who were there in support of it, wearing light blue ones. The people gathered there had observed respectfully, with incredible decorum throughout the day, the rules of the Texas senate. There had been a few moments—particularly after the first two strikes had been called—when they would begin to clamor. But when they did so, I’d looked up and gestured for them to quiet down, which they quickly did. They were watching for my signal on things, and as soon as I would do that, the gallery would just get completely quiet again. And for most of the day, with the occasional roar that we could hear from the thousands of people outside the senate gallery who had gathered in the capitol to add their voices to the mix, you could have heard a pin drop.

  But they’d been watching all day, and even a novice who doesn’t really understand the intricacies of Robert’s Rules of Order could see that the rules were not being applied fairly and reasonably, so the crowd was getting more and more upset—especially as the end of the evening was approaching and Democratic senators were demanding to have their debate points heard and instead having their microphones turned off. Though the nearly two hundred thousand people who watched it via Livestream couldn’t hear what was happening, the people who were in the gallery saw this: the Democratic senators screaming to be recognized by the chair and the chair purposely refusing to recognize them. With his bellowing voice, only Senator Royce West had managed to succeed at getting the attention of the chair.

  The crowd was already going wild. A little earlier, Le
ticia Van de Putte, our beloved senate colleague who’d been absent from our debate because her father had died in a car accident only a few days earlier, had driven back to Austin from his funeral in San Antonio and arrived, with a Department of Public Safety escort, at the capitol. She had planned on being with her family all day, having literally just laid her father to rest that morning. But when she heard what was going on in the capitol, she just couldn’t stay away. She felt strongly that she needed to be there, to stand next to her Democratic colleagues and support us in what we were fighting for. When she got there, she headed immediately to the floor. She hadn’t expected to say anything—she just wanted to add her presence as a symbol of support—but she became so frustrated watching what was happening that she, too, began screaming to be heard. At 11:44 p.m., sixteen minutes before midnight, still not being recognized—“Did the president hear me or did the president hear me and refuse to recognize me?”—she finally asked this question:

  At what point must a female senator raise her hand or her voice to be recognized over the male colleagues in the room?

  She’d had to shout that, of course, but as soon as she did, the gallery erupted. She’d brought the house down. It was the perfect statement. It beautifully summed up the frustrations we’d all been feeling. And the gallery could be silent no more. The spectators jumped to their feet and started screaming, and by then—because I had reached my breaking point and my patience point, too—rather than try to quiet them, I encouraged them. They had been obeying the rules all day while I’d watched my Republican colleagues breaking the rules, having no respect for the decorum of the Texas senate—or any of our other rules, for that matter—and I’d had enough. So I started gesturing in the opposite direction as I’d done previously when trying to quiet them—“Keep it up! Keep it up!” I was shouting up to them—and the rest of my Democratic colleagues joined around me. We knew if we could keep them going and keep a vote from being taken, we could get to that midnight deadline. Which is exactly what happened.