The post-Roe legal landscape regulating abortion in Texas: 'Myriad laws on top of laws'
Part 4 in a series on abortion in Texas. Find the rest of the series here.
In June, the Supreme Court overturned Roe v Wade, the landmark 1973 case that legalized abortion in all states. This year's ruling sent decisions about regulating abortion back to states.
Right now, multiple abortion restrictions are on the books in Texas, though none of them specifically targets pregnant people. The laws are focused instead on people who perform abortions, as well as those who "aid or abet" someone getting an abortion. Regardless, the impact is still the same: Abortion is banned in Texas with very narrow, limited exceptions.
Some of Texas' abortion laws right now are criminal. Some are civil. Some are recently passed laws. Some have been on the books for decades.
Elizabeth Sepper describes the legal landscape here as "myriad laws on top of laws." She is a professor at UT Austin's School of Law, specializing in, among other areas, health law and equality.
While some localities and local officials may try to preserve reproductive choice through resolutions and enforcement decision, she says, she still "wouldn’t go around trumpeting assistance in an abortion."
Listen to the interview above or read the transcript below to hear more from Sepper about the post-Roe legal landscape in Texas.
This transcript has been edited lightly for clarity:
What laws are on the books in Texas right now regulating abortion?
The Texas trigger ban prohibits performing or inducing an abortion, and it comes with five years to life imprisonment and at least $100,000 in fines. It does have a very narrow range of exemptions for the life of the mother and also for sort of extreme medical emergencies that are life-threatening.
Under that trigger ban there are no exceptions for other circumstances, such as rape or incest, correct?
There are no exceptions for rape, incest, fetal anomaly or sort of general health — even serious health concerns.
This trigger law covers all stages of pregnancy, correct?
The trigger ban is a total ban on abortion throughout the state of Texas. So, unlike SB 8, which permitted abortions during a very narrow range of time up to six weeks — or basically for maybe two weeks after someone found out they were pregnant — the trigger ban applies across the board. No abortions in the state of Texas with the exception of life-threatening emergencies.
Is SB 8 still in effect now in addition to the trigger law? Explain how SB 8 then impacts the abortion landscape in Texas right now, too.
Yes, so SB 8 is the “bounty hunter” provision which allowed anyone anywhere to seek $10,000 in damages from an abortion provider or from anyone who aids and abets someone to secure an abortion. So that's people who would drive someone, help them get access to medication abortion, give money to a friend. That is still in effect. So it's sort of a civil backstop to these criminal laws that we also have in effect.
Are there any other laws governing abortion in Texas right now?
Yes. We have myriad laws on top of laws. First of all, we had lots of criminal laws that already applied to abortion and layered on top of one another. Those are still in effect and could be used to bring criminal charges on top of the total abortion bans.
We also have a pre-Roe ban. This is an early 20th century statute that criminalized virtually all abortions except life-saving ones. And the Texas attorney general has argued that it still is in effect. And the reason this may matter is because it contains a provision prohibiting furnishing the means of an abortion. So this could apply to those who aid and abet, possibly folks to get an abortion. Right now this is, again, subject to litigation at the moment. A court has held that it can be civilly enforced right now, but not criminally enforced, but we're not sure where that will go.
And on top of that, we have a criminal law specific to a medication abortion that prohibits medications from being provided into the state of Texas through mail or otherwise for medication abortion in the state.
We have seen some elected officials — Travis County District Attorney Jose Garza was one of them — we've also seen entities like the Austin City Council and the Austin Police Department say they're not going to invest resources in enforcing these restrictions, not put time and effort into it, not bring charges. When a person or an entity says that, does that have legal standing or authority in Texas, given the laws right now?
So in terms of the effect of decisions to de-prioritize enforcement of abortion bans, I think it can provide some reassurance to the helpers, friends, family members, people who might help other people access abortion. As long as those helpers do all of their activities within, say, Travis County, they will face low risk of criminal consequence, which is not to say no risk. And there is, of course, the backstop of SB 8 where a stranger can bring a civil action to obtain $10,000 if they found out about what the helper had done. And there's not anything that the local authorities can really do to work around that.
The other thing to note is that decisions by district attorneys and cities to be as supportive as possible of abortion and disinclined to criminal enforcement doesn't mean that we're going to see abortion providers come back. It doesn't mean that there will be clinics able to operate. It simply means that the citizenry, in particular those who may be involved in helping people access self-managed abortion, can have slightly lower concerns. I wouldn’t go around trumpeting assistance in an abortion.
The setup in Texas right now strikes me as incredibly confusing — this myriad of laws and provisions. Is this typical of other states? Do they have this many things on the books with this many ins and outs and provisions?
We've seen a lot of states move to ban abortion in a number of ways, and some of them have adopted as well SB 8-style bounty hunter provisions to back things up. I don't want to overcomplicate, right? In some ways, things are very clear as to abortion in the state of Texas: It is entirely banned with very limited exceptions for life-threatening situations.
I think for medical providers and not just OB-GYNs — but certainly OB-GYNs — for OB-GYNs, for pediatricians, for cardiologists and oncologists and emergency medical physicians, everything has become much more complicated because pregnancy often involves complications. We've seen lots of stories come out — people who are diagnosed with cancer during early pregnancy and where not obtaining an abortion means that their condition is going to worsen but not to the point of becoming life threatening. We've seen doctors concerned about what they can tell patients, right? Can I refer for an abortion in another state? Can I give them information about this option? What can I tell them about fetal anomalies, given the likelihood that they might not be able to access abortion, even if a very serious fetal anomaly, say, not compatible with life is diagnosed? I think it's much more complicated and complicated in ways that affect all Texans of reproductive age.