We are still praising God for the dramatic victory on June 24 when the U.S. Supreme Court overturned Roe v. Wade with the Dobbs decision. But, the complex legal battle over abortion rights wages on in Texas.
APPLICABLE TEXAS LAWS: HUMAN LIFE PROTECTION ACT OF 2021, 1925 PENAL CODE ABORTION PROHIBITION & THE HEARTBEAT ACT
Texas is one of 13 states in the nation that has a pro-life “Trigger Law” outlawing abortion. Texas’ Trigger Law, called the Human Life Protection Act of 2021, will go into effect 30 days after the Dobbs opinion is a final judgment. So although the High Court has issued its opinion reversing Roe, it has yet to issue its judgment, which could take six or seven weeks. A judgment is a legal document distinct from the Court’s opinion. Since we cannot know exactly when SCOTUS will issue its judgment, we cannot yet know the precise effective date of the Human Life Protection Act 30 days later.
Meanwhile, however, Texas also has a nearly century old law enacted in 1925 banning abortion with criminal penalties. When SCOTUS handed down Roe in 1973 creating a nationwide constitutional right to abortion, the 1925 law remained on the books, but was not enforced.
Even without Texas’ 1925 ban or the Trigger Law, the Texas Heartbeat Act which bans abortion after a baby’s heartbeat is detectable, typically at about six weeks, remains in place.
ATTORNEY GENERAL PAXTON’S OFFICIAL ADVISORY ON TEXAS LAW ISSUED DAY OF DOBBS DECISION AND LEGAL COURSE OF ACTION THAT ENSUED
The day Dobbs was released on June 24, Texas Attorney General Ken Paxton issued an official advisory setting forth Texas law in light of the SCOTUS decision. Paxton advised that pursuant to the 1925 pre-Roe statutes, “abortion providers could be criminally liable for providing abortions starting today.” (See Attorney General Ken Paxton’s “Advisory on Texas Law Upon Reversal of Roe v. Wade” HERE)
But abortion right groups and clinics swiftly sued for a stay, arguing that the 1925 law was antiquated and had been effectively repealed by Roe. A Harris County district court issued a restraining order blocking the 1925 ban last Tuesday, ruling that abortions could temporarily resume. (See the Harris County district court Temporary Restraining Order HERE)
Abortion clinics in Texas raced to take advantage of the reprieve by scheduling and performing abortions up until six weeks.
Attorney General Paxton immediately filed an emergency motion for temporary relief on July 29 on behalf of Texas with the Texas Supreme Court to vacate the district court’s temporary restraining order. (See Attorney General Paxton’s Emergency Motion for Temporary Relief HERE)
Late last Friday night, the Texas Supreme Court granted the emergency motion, reversing the lower court order that allowed abortions to resume and allowing for civil enforcement of the 1925 pre-Roe ban. (See the Texas Supreme Court’s Order HERE)
This past Saturday morning, Attorney General Paxton called the reversal of the stay a “pro-life victory!” on Twitter (See Attorney General Paxton’s Tweet HERE)
The Texas Supreme Court directed the parties involved to submit briefings by Today, Thursday, July 7, at 5 PM over whether the district court has jurisdiction to enforce a criminal statute.
The complicated legal proceedings surrounding the Texas Trigger Law will likely continue to unfold. For now, abortion is illegal in the State of Texas after a heartbeat is detectable and, we pray, will be fully illegal once the Texas Trigger Law goes into effect, 30 days after the Texas Supreme issues its judgment in Dobbs.