Restrictions

Texas’s trigger ban, which criminalizes abortion, took effect on August 25, 2022,^[1]Tex. Health & Safety Code §§ 170A.001-7 (stating that the ban will take effect thirty days after “the issuance of a United States Supreme Court judgment in a decision overruling, wholly or … Continue reading following the U.S. Supreme Court’s decision to overturn Roe v. Wade in the case Dobbs v. Jackson Women’s Health Organization.^[2]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019). Because abortion is now a crime in Texas, other criminal laws, including solicitation, aiding, attempt, and conspiracy, could apply to abortion.^[3] Tex. Penal Code Ann. tit. 4, Ch. 15. In 2022, the Texas Supreme Court prohibited only criminal enforcement of the pre-Roe abortion ban and allowed for civil enforcement.^[4]Whole Woman’s Health v. Paxton, No. 22-0527 (Tex. July 1, 2022) (order granting stay). In 2023,the state created limited affirmative defenses to civil claims brought against physicians for treating ectopic pregnancies or providing miscarriage management.^[5]H.B. 3058, 88th Leg. Sess., Reg. Sess. (Te. 2023).

Texas has not repealed other laws relating to abortion. Texas law retains gestational bans at six weeks before many people know that they are pregnant.^[6]Tex. Health & Safety Code §§ 171.204-12. The Supreme Court allowed this ban to take effect on September 1, 2021, and remain in effect.^[7]Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021); see also United States v. Texas, 142 S. Ct. 14 (2021). Texas law also prohibits abortion at twenty weeks post-fertilization and during the third trimester.^[8]TEX. HEALTH & SAFETY CODE §§ 171.044, 170.002(a). It prohibits D&X and D&E procedures.^[9]Id. § 171.102(a); 171.152(a); see also Whole Woman’s Health v. Paxton,10 F.4th 430 (5th Cir. 2021). Texas law continues to include requirements that pregnant people must undergo a mandatory twenty-four-hour waiting period, biased counseling, and an ultrasound and ^[10]TEX. HEALTH & SAFETY CODE §§ 171.011, 171.012. prohibitions on public funding ^[11]TEX. ADMIN. CODE § 354.1167. and private insurance coverage.^[12]TEX. INS. CODE §§ 1218.003, 1218.004. IT continues to require that a parent or legal guardian be notified prior to a minor’s abortion^[13]TEX. FAM. CODE § 33.002 and consent to it or that^[14]Id. § 33.0021; TEX. OCC. CODE § 164.052(a)(19). a judge can approve a minor’s petition.^[15]TEX. FAM. CODE § 33.003.

In 2020, Texas Governor Greg Abbott exploited the COVID-19 pandemic in an attempt to ban abortion care, issuing an executive order^[16]Gov. Greg Abbott, Exec. Order No. GA-09, “Relating to hospital capacity during the COVID-19 disaster” (March 22, 2020). that purported to suspend procedures deemed “not immediately medically necessary” by the state. This order contradicted major medical groups in the United States and around the world, which agree that abortion is essential and time sensitive health care.^[17]See Joint Statement on Abortion Access During the COVID-19 Outbreak, Am. Coll. Obstetrics & Gynecology (Mar. 18, 2020); Disaster Risk Management for Health, Sexual and Reproductive Health, World … Continue reading After a series of temporary restraining orders from the district court and appeals to the Fifth Circuit Court of Appeals, Texas allowed abortion to continue under a new executive order.^[18]Gov. Greg Abbott, Exec. Order No. GA-15, “Relating to hospital capacity during the COVID-19 disaster” (April 17, 2020); Gov. Greg Abbott, Exec. Order No. GA-19, “Relating to … Continue reading

Texas retains targeted regulation of abortion providers (TRAP) laws related to facilities ^[19]TEX. HEALTH & SAFETY CODE § 171.002; 25 TEX. ADMIN. CODE §§ 139.32, 139.48. and reporting. ^[20]TEX. HEALTH & SAFETY CODE § 245.011(a); 25 TEX. ADMIN. CODE §§ 139.4, 139.5. Texas law continues to restrict the provision of abortion care to licensed physicians^[21]TEX. HEALTH & SAFETY CODE § 171.003. and restrict providers from using telemedicine for the provision of abortion care.^[22]Id.§ 171.063. Providers who violate Texas’s abortion restrictions may face civil and criminal penalties.^[23]Id. § 170A.004; id. § 170A.005.

State Protections

Texas law does not include express constitutional or statutory protections for abortion. The cities of Austin,^[24]Austin, Tx., Resolution 20220721-002 (July 21, 2022), available at https://www.austintexas.gov/edims/document.cfm?id=389094 Dallas,^[25]Dallas, Tx., Resolution 22-1775 (Aug. 10, 2022), available at https://cityofdallas.legistar.com/View.ashx?M=F&ID=11113843&GUID=62D0C323-DEC9-4245-8E57-F0A8060BC613. Denton,^[26]Denton, Tx., Resolution 22-1275 (Jun. 28, 2022), available at https://denton-tx.legistar.com/LegislationDetail.aspx?ID=5708779&GUID=5149B007-7826-4325-A89C-F0584414A495 El Paso,^[27]El Paso, Tx. Resolution 23-188 (Jan. 31, 2023), available at https://elpasotexas.legistar.com/View.ashx?M=F&ID=11905826&GUID=9F4DB56C-4235-49F4-ADF9-C822470B3969. and San Antonio^[28]San Antonio, Tx.. Resolution Concerning Abortion (Aug. 2, 2022), available at  https://sanantonio.primegov.com/Portal/Meeting?meetingId=5473&templateName=HTML%20Agenda  passed ordinances preventing city funds from being used to investigate the provision or receipt of abortion care.

Post-Roe Prohibitions

In 2021, Texas passed a trigger ban^[29]TEX. HEALTH & SAFETY CODE §§ 170A.001-7.. and the state has a pre-Roe criminal ban that the Fifth Circuit held was repealed by implication. ^[30]McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (“The Texas statutes that criminalized abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in [Roe v. … Continue reading On July 1, 2022, the Texas Supreme Court allowed for civil enforcement of the Pre-Roe.^[31]Whole Woman’s Health, No. 22-0527 (Tex. July 1, 2022) (order granting stay). In 2022, abortion funds sued the Attorney General of Texas and local prosecutors after they threatened to prosecute people for assisting or facilitating abortion care outside of Texas.^[32]Fund Texas Choice v. Paxton, 2022 WL 3645109 (W.D. Tex.) The federal district court held that the Texas trigger ban does not prohibit assistance with out-of-state care and enjoined the Attorney General and County Attorneys from enforcing the pre-Roe ban.^[33]Fund Texas Choice v. Paxton, 658 F. Supp. 3d 377, 415 (W.D. Tex. 2023).

Conclusion

Now that the Supreme Court has overturned Roe, Texas is enforcing its trigger ban, which prohibits abortion and includes civil and criminal penalties.