Abortion in Texas would essentially be prohibited if Roe vs. Wade is overturned

Texas already has a “trigger law” in place, which essentially would prohibit abortion in the state if the U.S. Supreme Court overturns the landmark 1973 Roe vs. Wade ruling that effectively legalized the procedure almost a half-century ago.

The trigger law passed in 2021 would kick in 30 days after the court’s ruling and make those who perform or help provide an abortion subject to a felony. The only exception in that law is if there is a risk for the patient’s life or “substantial impairment of major bodily function.” Doctors who perform abortions not allowed under the law could face life in prison and up to $100,000 in fines.

A dozen other states also have trigger laws.

Further, Texas never repealed older statutes that made abortion a crime. Experts say those laws could be used to prosecute abortion providers or funds. Under these statutes, those who “furnish the means” or “administer” can be charged with criminal violations.

The Mississippi abortion law awaiting a formal Supreme Court ruling would ban abortions at 15 weeks. Roe vs. Wade once was considered an unassailable legal precedent, but the Dobbs vs. Jackson Women’s Health case poses the most serious threat to Roe ruling in decades.

The current key abortion law in Texas is Senate Bill 8, enacted Sept. 1 after sharply divided political debates in the Legislature is considered a six-week ban. It has withstood legal challenges so far.

The Supreme Court itself has allowed Senate Bill 8 to remain in effect. SB 8 relies on citizen enforcement and allows people to sue anyone who aids and abets an abortion after about six weeks. Legal challenges continue, including a new federal lawsuit filed last month by former North Texas state Sen. Wendy Davis and others.

‘A new era’

Reaction was swift.

“If it’s true that the Supreme Court is poised to strike down Roe we have entered a new era. 50 years of right-wing activism has arrived at a position that 69% of Americans oppose. The Senate must pass the House bill codifying Roe,” Dallas Democratic U.S. Rep. Colin Allred tweeted, referring to the Women’s Health Protection Act.

Rep. Marc Veasey, D-Fort Worth, said on Twitter: “If handed down, the draft opinion by SCOTUS will be a direct assault on access to essential health care and the right to reproductive freedom. Congress must act now to protect Roe v. Wade by passing the Women’s Health Protection Act.”

Republican Rep. Jodey Arrington of Plainview countered: “Great news on the SCOTUS decision regarding abortion rights.If Justice Alito’s draft opinion holds, Roe v Wade will be overturned and issues of abortion will be delegated to the states and their elected representatives.”

Democratic gubernatorial candidate Beto O’Rourke criticized the ruling on Twitter and Facebook, writing, “Every woman deserves the freedom to make their own decisions about their body, health care, and future. It’s never been more urgent to elect a governor who will always protect a woman’s right to abortion.”

Grand Prairie state Rep. Chris Turner, a North Texas Democrat, said on Twitter that it was “stunning” to think that the constitutional right could be erased.

“American women must not be forced to withstand this assault on their liberty,” Turner said. “Congress must act.”

Texas Democratic Party co-Executive Director Hannah Roe Beck joined in decrying the report.

”This news is no surprise in Texas, where our right to an abortion has been under attack for decades... No child or adult should be forced to carry a pregnancy to term against their will. Period. Radical conservatives are running on a platform of authoritarianism, forced birth, and human suffering. They are anti-freedom and anti-Texan,” Beck said in a statement.

But opponents of SB 8 and other abortion restrictions being enacted nationwide must continue their fight, Beck said. “While this news is bleak, we cannot and will not stop fighting. This will only power our fight to codify the right to abortion at the federal level. It’s more important than ever that we elect leaders who are ready to put everything on the line to get this through Congress. We cannot tolerate anything less.”

Dallas County Judge Clay Jenkins said on Twitter that the leaked draft was “unprecedented.”

“If this is true, not only is a woman’s right to determine her on pregnancy healthcare gone in Republican states, but a host of rights to privacy are in grave risk too,” he said.

‘Blatant attempt to intimidate the Court’

Texas GOP Sen. Ted Cruz and other Republicans sounded the alarm over the leak itself and the possibility that abortion rights supporters are trying to intimidate justices into reaching a different ultimate ruling.

“If this report is true, this is nothing short of a massive victory for life and will save the lives of millions of innocent babies. But while I continue to wait for the Supreme Court’s ultimate opinion, I am appalled by the shocking breach of trust posed by this leak,” Cruz said in a Twitter string of comments.

In the next tweet, Cruz said, “This is a blatant attempt to intimidate the Court through public pressure rather than reasoned argument. I hope my fellow former clerks and the entire legal community will join me in denouncing this egregious breach of trust.”

Republican Party of Texas Chairman Matt Rinaldi hit the same theme, asking in a tweet: “If a different opinion issues from the Court after the left engages in their inevitable campaign of threats and public pressure, can any State treat it as legitimate?”

Another key Republican leader, Texas Attorney General Ken Paxton, said on Twitter that a Supreme Court ruling that returns control to the states is the right response to the Dobbs case from Mississippi.

“I hope that #SCOTUS returns the question of abortion where it belongs: the States. This is why I led a 24-state coalition in support of MS’s law banning them after 15 wks,” Paxton wrote.

Groups on both sides respond

Stakeholder groups joined in the reaction, with abortion rights supporters preparing for a history-making overhaul. “Thank you to every abortion advocate, organization, and group who has fought these battles with us. We will see what the final opinion says, but we can anticipate it will be something very close to this. Until then, all we can do is wait and keep on fighting until the end,” the Texas Women’s Health Caucus tweeted.

Catholics for Choice President Jamie L. Manson said in a statement that “this leak – if true – is unprecedented and shocking. The alleged decision, decimating fifty years of the court’s own opinions, is an affront to our nation’s judicial process and devastating to the people whose lives are jeopardized by the court’s actions.”

On the other side of the issue, Texas Alliance for Life said in a statement, “Even if the February draft is legitimate, it is not the final word.”

Texas Right to Life communications director Kimberlyn Schwartz said the group that describes itself as the state’s oldest and largest “pro-life organization” in the state is hopeful the outcome leads to the overturning of Roe.

“We are encouraged by the categorical boldness of the draft that corrects the erroneous precedent of Roe. We prayerfully anticipate the complete reversal of Roe, giving authority to protect preborn children back to the states,” Schwartz said.

“However, the outcome is not final,” she added. “A leak this big is unprecedented and could have been an attempt to sway the decision. We expect pro-abortion radicals to attempt to intimidate the justices from protecting preborn children in this manner. Pro-Life advocates must continue to pray, especially for the justices’ fortitude, until the court officially issues a decision.”

The Roe challenge originated in Dallas County.

Lawyer Linda Coffee wrote the check for $15 on March 3, 1970, to file docket number CA-3-3690-B in a case named Roe vs. Wade in the United States District Court for the Northern District of Texas.

Coffee, the co-counsel on the case with Sarah Weddington, foresaw trouble ahead for Roe, telling The Dallas Morning News in a December article, “I’m really disappointed in what looks like there may be five justices on the Supreme Court now that are ready to either substantially limit or radically change Roe vs. Wade.”

Staff writer Nataly Keomoungkhoun contributed to this report.