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Health care providers sue Texas over pre-Roe abortion ban

A person has "My choice" written across her chest.
Patricia Lim
Women who seek an abortion will have to go out of state for the procedure. Providers in Texas stopped performing abortions Friday, saying abortion law in the state is unclear in the immediate aftermath of the Supreme Court's decision.

A coalition of abortion providers in Texas filed a lawsuit Monday against the state over a decades-old ban on the procedure.

The lawsuit seeks to block state officials from enforcing the complete abortion prohibition that predates the landmark U.S. Supreme Court ruling in Roe v. Wade.

“Abortion services stopped immediately in Texas last week after the Supreme Court’s crushing decision, but we will fight to maintain access for as long as we can,” said Nancy Northup, president and CEO of the New York-based Center for Reproductive Rights, one of the organizations suing.

Last week, the U.S. Supreme Court overturned abortion rights.

Currently, Texas bans the procedure after six weeks of gestation. But a so-called trigger law passed last year is poised to eliminate nearly all abortions. This latest law will go into effect 30 days after the court issues its judgment, which Texas Attorney General Ken Paxton said could happen in about a month.

But in a memo Paxton issued after the ruling, he said “some prosecutors may choose to immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

Paxton made reference to a state law that, until the 1973 U.S. Supreme Court decision on Roe v. Wade, made performing an abortion punishable with up to five years in prison.

“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” Paxton said. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today."

At least one district attorney, Travis County's Jose Garza, has said he will not use his office to prosecute people who seek or provide an abortion.

Paxton's memo has caused confusion among abortion providers, which have halted their services in Texas in response.

“There is enough legal uncertainty that abortion providers and abortion funds in Texas do not want to take the legal risk, which is going to be litigated if they take that legal risk,” Seema Mohapatra, a law professor at Southern Methodist University, told Texas Standard Monday.

However, she said that in 2004, a U.S. Court of Appeals said the pre-Roe laws had been impliedly repealed after the Roe decision.

In their lawsuit filed in district court in Harris County, the coalition of abortion providers asked the court to give them and patients assurance that, for now, performing the procedure is not illegal.

“Mr. Paxton’s and the Texas Legislature’s attempts to greenlight the immediate prosecution of abortion providers based on violations of the Pre-Roe Ban must not stand,” the lawsuit said.

The lawsuit said that these are enough reasons to not enforce the pre-Roe ban.

Paxton’s office didn’t immediately respond to a request for comment.

The plaintiffs — which include Houston Women’s Reproductive Services and Whole Woman’s Health — have also asked the court to declare that the pre-Roe ban has been repealed “expressly or by implication.”

“Pregnant people deserve better. Families deserve better. That is exactly why we’re digging in,” said Amy Hagstrom Miller, the president & CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. “That is why we will never stop fighting back. It is why we will persist unrelentingly in our mission to deliver the compassion, empathy, support, and care that the politicians responsible for this nightmarish situation have made clear they will not.”

Sergio Martínez-Beltrán is the former Texas Capitol reporter for The Texas Newsroom.
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