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Updated: The State of Pro-Life Laws in Texas

Updated: The State of Pro-Life Laws in Texas

Background:

The U.S. Supreme Court overturned Roe v. Wade last week, returning to individual state legislatures the ability to set restrictions on abortion.  The Court explicitly acknowledged that “Roe was egregiously wrong from the start” while also stating that “On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice.”

Therefore, according to SCOTUS, the Constitution is neutral towards abortion.  Now facing this reality, a number of states with trigger laws – bans designed to take effect with the overturning of Roe – have already completely banned abortion.  Other states have ongoing litigation to decide when their trigger bans can take effect.  In Texas, Attorney General Paxton put out an advisory stating that prosecutors may choose to immediately pursue criminal prosecutions against those seeking abortions, however, some media outlets are trying to say that abortion is still legal in Texas, at least temporarily.  So, what’s the truth?

Is abortion illegal in Texas?

Yes. The Texas Heartbeat Act became effective on September 1, 2021 and makes abortion illegal in Texas once a fetal heartbeat can be detected. Heartbeats have been detected as early as 5-6 weeks into a woman’s pregnancy.

Since Roe v. Wade is overturned, why isn’t abortion illegal before 5 weeks?

It can and it will be. The Human Life Protection Act will go into effect 30 days after the U.S. Supreme Court issues it’s official judgment document, which is generally about 30 days after the opinion is issued.  This means that in approximately 60 days from Roe v. Wade being overturned, abortions will be illegal from the moment of fertilization and anyone who violates it could be held criminally liable.

What about the pre-Roe statutes?

When Attorney General Paxton issued his June 24th advisory on abortion, he specifically mentioned Tex. Rev. Civ. Stats. Ann. Art. 4512.1 through 4512.6.  These laws, known as the “pre-Roe statutes,” outlawed abortion in 1925 and were suspended when Roe v. Wade found a right to abortion in 1973.  However, they were never repealed by the Texas Legislature and could spring back into active enforcement now that Roe has been overturned.

There is ongoing litigation over whether the pre-Roe statutes can be enforced consistent with due process.  Abortion providers sued in Harris County, claiming that these statutes were repealed by implication. They convinced a liberal judge to grant a temporary restraining order against enforcement and a future hearing has already been scheduled to hear arguments from both sides. Regardless of the enforcement of the pre-Roe statutes, abortion will soon be illegal from fertilization by virtue of Texas’ trigger law.

Trigger Law Background:

  • 13 states, including Texas, have a “trigger law” that will ban most or all abortions now that the Supreme Court has overruled the central holding of Roe.
  • The Human Life Protection Act is Texas’ trigger law and will make abortions illegal in Texas from fertilization.
  • A person who violates the Act commits a first-degree felony if an unborn child dies as a result, and incurs civil penalties of not less than $100,000 for each violation.
  • Read more about Texas’ trigger law here
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