It has only been two months since the Supreme Court eliminated the federal constitutional right to seek an abortion in Dobbs v. Jackson Women’s Health Organization. The fallout of this drastic reversal will continue to develop for months or even years. It will play out in courtrooms and hospital rooms and boardrooms and bathrooms. Some of the effects were immediate, some delayed, and some will not reveal themselves for a long time.
In Texas, the most significant impact of Dobbs will be felt today, August 25, 2022, as the “Roe trigger ban” takes effect. This law, in effect, makes it a felony to provide an abortion in virtually every circumstance. The purpose of this column is to explain the current status of abortion rights and access in Texas, the second most populated state in the country (home to almost 9% of the U.S. population) and with some of the harshest abortion laws in the country.
Abortion Law in Texas Before Dobbs
In order to understand the current law in Texas, it is necessary to first understand the law before Dobbs because some of those rules are (or might be) still in effect—and intersect in complicated ways with the laws that will now ban abortion in most circumstances.
The ruling in Dobbs overruled Roe v. Wade, a 1973 case that first recognized the constitutional right to seek an abortion before a certain point in pregnancy, and all the cases that relied or built on Roe, such as Casey v. Planned Parenthood (1992). Roe itself involved a Texas law, one that criminalized abortion bans in virtually all circumstances.
The first law banning abortion in Texas was enacted in 1854. The law that was challenged in Roe was very similar to that initial ban. At the time of Roe, the statute defined abortion to occur when “the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.” It then provided that it was a crime punishable by 2-5 years in prison to “designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion.” Although the statute does not make this clear, Texas courts interpreted this to exclude liability for the pregnant person—the crime is to induce abortion in another person. The pre-Roe law also made it a crime to “furnish the means for procuring an abortion knowing the purposes intended.”
This entire statute was struck down by the Supreme Court’s ruling in Roe v. Wade, which held that women had a constitutional right to seek an abortion before viability. Texas’s criminal ban became unenforceable, along with similar criminal bans in dozens of other states. The legislature never repealed the law, but it was eventually removed from the official code since it could not be constitutionally enforced. And in 2004, the U.S. Court of Appeals for the Fifth Circuit held in McCorvey v. Hill that the pre-Roe criminal abortion bans in Texas had been “repealed by implication.”
Many decades later, the Texas legislature again got in the business of regulating abortion. Over a series of sessions, after the Republican party took control of a state that had been in Democratic hands for a century, the legislature adopted laws that did not ban abortion but made it more onerous and costly. These laws required anyone seeking an abortion to undergo a mandatory ultrasound with prescribed counseling from the doctor—including information that is misleading at best about the risks of the procedure—and to have two appointments with the same doctor at least 24 hours apart. The legislature also imposed a ban on abortions after 20 weeks except in cases of severe fetal abnormality, even though viability does not occur until at least 24 weeks (and Roe and Casey clearly did not permit states to ban previability abortions). The legislature also passed laws to prevent the use of telehealth even for medication abortion and to prevent private insurance policies from covering abortion. For minors, the legislature imposed a requirement of parental consent, which could be bypassed only with a court order. At one point, the law also included provisions designed to drive abortion clinics out of business by forcing them to comply with requirements for ambulatory surgical facilities. But these so-called TRAP (“targeted regulation of abortion providers”) laws were invalidated by the U.S. Supreme Court in 2016 (explained here).
Then, in the 2021 session, the Texas legislature passed several new laws that will shape the legal landscape at least for the near future. (This session was the type that explains the saying in Texas: The legislature meets for 140 days every two years, but it would be better if it met for two days every 140 years.)
In this session, the legislature passed SB 8, which took effect on September 1, 2021 (and is explained in more detail here). This law provided a preview of the post-Dobbs world because it eliminated most abortion access in the state of Texas. But it did so in a devious way that was designed to evade judicial review—and it succeeded in that quest. The law, which is still in force, provides that any individual can sue in civil court for an abortion that takes place after the detection of embryonic cardiac activity, which occurs in most cases around the end of the sixth week after the first day of a woman’s last menstrual period (two weeks after most pregnancies are detectible). That individual could sue not only an abortion provider, but anyone who “aided and abetted” the abortion for a minimum of $10,000 per defendant. The law also changed the rules of civil procedure only for this particular cause of action to make it virtually impossible for any defendant to have a fair opportunity to put up a defense.
But in order to avoid constitutional review, the law provides that state officials do not have the authority to enforce the abortion ban directly. Only governmental actors are bound by the Fourteenth Amendment (which housed the then-existing constitutional right to abortion), and, for complicated (and contested) reasons, this feature of the law led the Supreme Court to hold that no federal court could consider its constitutionality. Although the law eliminated abortions eighteen weeks prior to viability—when Roe and Casey clearly did not allow states to ban previability abortions for any reason—it took effect and remains in effect today. Thus, despite the existence of a constitutional right to a previability abortion, most people in Texas could not get abortions.
A second bill curtailed abortion access in a different way. SB 4, which took effect on December 1, 2021, provided that doctors could only use medication to induce abortion until the end of the seventh week of pregnancy, even though the FDA has approved the pills for use up to the end of the tenth week of pregnancy.
Until Dobbs was released, SB 8 was the most significant law to come out of the 2021 session because it effectively made it impossible for most people get abortions in the state, in part because it was layered on top of the delays and burdens imposed by other abortion laws, which were also still in effect. Minors, for example, would only have two weeks from the first day they might discover they were pregnant to obtain either parental consent or a judicial bypass and schedule two appointments with the same doctor. As I’ve written about elsewhere, the interplay of these laws effectively meant that minors were deprived of abortion access in virtually all cases.
A third bill, the Roe trigger ban, is the one that will now take the main stage. But first, we must detour back fifty years to get a full picture of the legal landscape for abortion in Texas.
The Immediate Aftermath of Dobbs: Threatened Enforcement of the Pre-Roe Bans
With its ruling in Dobbs, the Supreme Court effectively returned the issue of abortion to the states. It is not clear whether any abortion restriction, no matter how harsh, would be held to violate the Due Process Clause (formerly the home of abortion rights) under the highly deferential standard of review that will now be applied.
Although the laws were invalidated 49 years ago by the Supreme Court, the Attorney General of Texas, Ken Paxton, stated immediately after Dobbs that he believes the pre-Roe bans are back in effect—having sprung back to life by the overruling of the case that held them invalid. These laws hold the potential for criminal punishment not only for the providers who perform abortions not necessary to save the pregnant person’s life but also anyone who “furnishes the means for abortion,” which could include abortion funds and any number of other people and organizations who work to aid Texans access abortion. There are a variety of reasons to believe this is a meritless theory, but the abstract legality is sort of beside the point. Members of the inaptly named Texas Freedom Caucus sent threatening letters to a variety of recipients to threaten them with criminal prosecution for providing money or other support to enable Texas residents to access legal abortions in other states. The law firm of Sidley Austin was the recipient of one of the letters, though their only connection to abortion was the announcement that the firm would reimburse employees for the costs incurred in leaving the state to obtain an abortion.
The Center for Reproductive Rights filed a lawsuit almost immediately on behalf of abortion funds, seeking a declaratory judgment that the pre-Roe bans are no longer good law and cannot be enforced. The district court judge granted a TRO preventing enforcement of those bans, which was in place for only a few days before being vacated by the Texas Supreme Court, which held that those laws could be civilly but not criminally enforced (for now). The end result is that the threat of prosecution is sufficient to have shut down all abortion clinics in the state, most if not all of the abortion funds, and perhaps other organizations that help patients access abortion care both in and out of the state of Texas. Thus, within a week of the Dobbs ruling, the entire system for providing abortion to patients and supporting abortion access in Texas had been shut down. This week, the abortion funds and other groups that support abortion access filed another lawsuit, seeking a declaration that the organizations have the right to provide informational, financial, and logistical support to people in Texas who want to obtain legal abortions in other states. In their complaint, the organizations allege, among other things, that the threat by state officials to prosecute them for supporting out-of-state abortion access violates the First Amendment and the constitutional right to interstate travel.
The Next Phase of Abortion Rights in Texas after Dobbs: Back to the Back Alleys
Although the lawsuits just mentioned are still working through the courts and remain important, the legal haggling over the continued vitality of the pre-Roe bans will now take a back seat to the Roe trigger ban. Also enacted during that 2021 legislative session, House Bill 1280, makes abortion a felony in virtually all circumstances. The law was written to take effect 30 days after the final judgment in any ruling of the U.S. Supreme Court that overrules Roe v. Wade in whole or in part. Dobbs clearly meets that definition, and the judgment in Dobbs (which does not happen when the opinion is released) was issued on July 26, 2022. The trigger ban thus takes effect on August 25, 2022, thirty days later.
HB 1280, or the Human Life Protection Act of 2021, prohibits a person from “knowingly performing, inducing, or attempting an abortion on another person.” An abortion is defined by reference to section 245.002 of the Texas Health and Safety Code, which states as follows:
“Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to
- save the life or preserve the health of an unborn child;
- remove a dead, unborn child whose death was caused by spontaneous abortion; or
- remove an ectopic pregnancy.
There are a couple of notable things about this definition. First, the definition clearly includes both surgical and medication abortions. Thus, the criminal ban applies to all methods of abortion. Second, while the definition excludes a procedure to “remove a dead, unborn child whose death was caused by spontaneous abortion,” this only applies to a miscarriage where the embryo or fetus has no cardiac activity. A non-viable pregnancy, with no chance that it will result in a live birth (for example, when the amniotic sac breaks well before viability) cannot be “removed” unless cardiac activity has ceased on its own. Third, the law expressly excludes contraceptive devices and pills, unlike some of the bans in other states where some contraceptive methods might qualify as “abortion” under legislative definitions that bear no relationship to medical definitions of abortion.
The crux of HB 1280 is that it “prohibits” a person from providing an abortion for another person. (None of these laws apply to self-managed abortion; it is neither a criminal act nor a violation of SB 8 for a pregnant person to terminate her own pregnancy through any means.) The penalty under the trigger law for performing an illegal abortion is extraordinarily harsh—a single unlawful abortion could result in the provider’s imprisonment for life, as well as a mandatory $100,000 civil penalty imposed by the state’s attorney general.
The trigger law contains a narrow exception for “medical emergencies,” which are defined by HB 1280 to occur when a pregnant person is experiencing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that exposes them to “danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” This exception is written to preclude its application to mental health emergencies or threats of self-harm, which were often used by doctors to justify abortions under the pre-Roe bans in Texas and elsewhere.
The scope and application of the medical emergency exception is one of the legal uncertainties. There are many words used to describe the exception that have uncertain meaning—and certainly do not answer important questions about how to apply them in the emergency medical care setting. For example, an abortion is lawful if the pregnancy is “life-threatening” to the person who is pregnant. How likely does death have to be before the pregnancy is deemed “life-threatening”? If the patient has a 20 percent chance of dying if she remains pregnant, is that “life-threatening”? How about 50 percent or 80 percent or two percent? In standard obstetrical care, doctors recommend a caesarean section when the fetus presents in a breech position even though the risk of harm to the fetus from a vaginal birth is only 1-3 percent. Is that same level of risk sufficient to say an abortion is necessitated by a life-threatening emergency?
The emergency exception also allows abortion when pregnancy exposes the person to a “serious risk of substantial impairment of a major bodily function.” What constitutes a “serious risk”? What constitutes a “substantial impairment”? What qualifies as a “major bodily function”? The vagueness and uncertainty of this exception means that doctors and hospitals have to make a determination about when they are willing to provide abortion care with no guarantee that they will be protected from criminal prosecution. A doctor who contemplates providing any abortion will have to consider the costs of being “wrong”—second-guessed by a prosecutor and a judge or jury about a medical decision that the legal system is not equipped even to understand. Moreover, the harsh penalties contained in HB 1280 mean that the cost of being wrong is staggering. It should come as no surprise that doctors and hospitals (many of whom will be counseled in advance by lawyers) will err on the side of not performing necessary abortions because the cost of erring in the other direction could be too devastating. And some will be so cautious that they do not perform even clearly lawful procedures such as the removal of an ectopic pregnancy or miscarried embryo or fetus. As the doctors quite rationally weigh the potential cost of violating HB 1280, women in Texas will bear the enormous human cost of losing access to necessary and sometimes life-saving medical care.
It is not a crime to let a pregnant woman die when a safe medical procedure would have saved her life. But it is a crime to terminate a pregnancy, even a non-viable one, unless the pregnant woman is on the brink of death or substantial bodily impairment. Just think for a minute about the illogic of such a law, to say nothing of its inhumanity.
Effective today, Texas has turned back the clock fifty years. The ban that just took effect permits lawful abortion in even fewer circumstances than did the pre-Roe ban because the medical emergency exception is narrower. And the penalties have increased twenty-fold. There may never be a single prosecution under this law because the fear it instills is sufficient to end abortion care in the state, even for women who desperately need it.
Thanks to greater interstate mobility and the development of medication abortion, fewer women will be driven to unsafe, “back alley” abortions than in the pre-Roe era. However, wealth will become the primary determinant of access to abortion care, as the obstacles to obtaining it have dramatically increased. Many women will simply be forced to remain pregnant and give birth—an act that is fourteen times more likely to kill them than abortion—and bear the consequences forever. And some women who desperately wanted to be pregnant will die or experience other bodily harm because of the spillover effects of the law that increase the likelihood of substandard care for miscarriages, ectopic pregnancies, and other “abortion-adjacent” situations. If this makes you feel triggered, that is exactly what the Texas GOP intended.