Texas becomes the most populous state in the country this week with laws on the books virtually banning abortions through the threat of felony prosecutions for doctors who perform the procedure.
Texas’ so-called “trigger law” becomes official policy Thursday, giving the anti-abortion movement and Republican lawmakers a long-sought victory made possible by the U.S. Supreme Court’s June ruling overturning 1973’s Roe V. Wade decision. The ruling returned the question of access to abortion to the states.
Current Texas laws already make getting a legal abortion close to impossible. They include 2021’s Senate Bill 8 — which bans the procedure after about six weeks of pregnancy — and a 1925 law that opens abortion providers up to civil penalties and lawsuits which was resurrected by the Texas Supreme Court last month.
The Texas trigger law, House Bill 1280, was passed in 2021 and designed to go into effect 30 days after a U.S. Supreme Court final judgment “overruling, wholly or partly, Roe v. Wade.” Abortion-rights advocates and legal experts said it is the final step in making access to abortion impossible in Texas except under the rarest of circumstances.
“The trigger law is basically a complete abortion ban,” Joanna Grossman, the Ellen K. Solender Endowed Chair in Women and the Law and professor of law at Southern Methodist University, told The Texas Newsroom. “SB 8 has effectively ended abortions after the sixth week of gestation, but [House bill] 1280 has no gestational age. So, there’s no point in pregnancy at which abortion is legal.”
The law makes it a second-degree felony “for a person who knowingly performs, induces, or attempts an abortion” according to the bill analysis. The penalty increases to a first-degree infraction “if the unborn child dies as a result of the offense.”
There is no exception for rape or incest and the only exception is if the pregnancy or the birth is going to threaten the life of the person who’s pregnant or cause a major bodily harm.
Proving that an abortion was performed in that limited scope, Grossman added, will be a challenge.
“I think what you can expect to change [Thursday] is that even the emergency room care is going to become more treacherous for providers and more dangerous for patients, while providers figure out what they can and can't do or what risk they are subjecting themselves to by providing emergency abortion care,” she said. “It’s up to the providers to figure out — to sort of guess — is a prosecutor going to disagree with me if I decide this is a qualifying emergency and I provide abortion care?”
Texas is one of more than a dozen states that had trigger laws in place to further restrict abortion in the aftermath of a Roe v. Wade reversal.
Marc Herreon, the senior counsel at the Center for Reproductive Rights and the lead attorney in a lawsuit against Texas’ SB 8, said the trigger law adds additional complexity in a state already flooded with so many different laws and rulings around abortion access.
“The trigger ban going into effect this week increases the penalties for a doctor who provides an abortion to 5-99 years imprisonment, plus wide-reaching and enormous civil penalties,” he said in an email. “This will only increase the legal chaos in the state and confusion for those in need of an abortion who now face ever-shifting laws and restrictions.”
Soon after the U.S. Supreme Court decision, the Biden administration issued guidance on abortion stating doctors who provide the procedure in emergency situations are protected by federal law. The U.S. Department of Health and Human Services said the Emergency Medical Treatment and Active Labor Act protects abortion providers when they offer “legally mandated, life- or health-saving abortion services in emergency situations.”
But late Tuesday a federal judge in Lubbock sided with Texas Attorney General Ken Paxton’s challenge to that guidance and struck it down for Texas.
Even before Texas’ trigger law went into effect, some providers already decided staying in Texas wasn’t worth the risk. Whole Woman’s Health, which operated four clinics that provided abortions in Texas, announced in early July plans to move its operations to New Mexico. The group launched a fundraiser to facilitate its move to The Land of Enchantment.
Last week on its GoFundMe page, WWH wrote it had only raised a third of the funds needed to relocate.
“It has been a tough month of winding down our clinics in Texas after 20 years of service to our communities,” the organization posted. “We have seen donations come from our local communities and as far away as Eastern Europe and beyond. We have two clinics packed up and still have two to go. This work is grueling - emotionally, physically and spiritually.”
Abortion laws and the November election
The Texas law hasn’t won approval from the majority of registered voters in the state. About half said they oppose the restrictions in the trigger law, according to the results of a poll released last month by the Hobby School of Public Affairs at the University of Houston.
The U.S. Supreme Court ruling has also given a much-needed boost to Democrats as they enter a challenging midterm contest this November in an election year that’s been dominated by issues that also include the economy, border security and election integrity.
In Texas, Democrats have also seized on the abortion issue. That includes Beto O’Rourke, the Democratic nominee for governor who’s looking to unseat two-term incumbent Greg Abbott.
O’Rourke is scheduled to hold a news conference Thursday in Houston to “hold Greg Abbott accountable for enacting an extreme law that bans abortion beginning at conception with no exception for rape or incest,” his campaign said.
In June, Abbott celebrated the U.S. Supreme Court ruling on Roe v. Wade and championed Senate Bill 8 at the Texas Legislature.
“The U.S. Supreme Court correctly overturned Roe v. Wade and reinstated the right of states to protect innocent, unborn children,” Abbott said in a statement released June 24. “Texas is a pro-life state, and we have taken significant action to protect the sanctity of life.”
