On Friday, following the U.S. Supreme Court’s ruling overturning Roe v. Wade, abortions in Texas ceased despite the fact that the state’s trigger law banning the procedure has not yet gone into effect.
Attorney General Ken Paxton had argued that state laws banning abortion before Roe v. Wade – which had never been repealed – could now be in effect, making abortion illegal in Texas.
Seema Mohapatra, the M.D. Anderson Foundation Endowed Professor in Health Law at Southern Methodist University’s Dedman School of Law, joined Texas Standard to explain more about the current status of abortion access in Texas.
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Why have Texas abortion providers halted services if the state’s trigger law has not been enacted?
Paxton has said that his interpretation of pre-Roe laws – making it a crime to perform an abortion or furnish the means for procuring an abortion, except to save the life of a pregnant person – is that they can be enforced right now, Mohapatra said. That was previously punishable by two to five years in prison.
Mohapatra pointed out that a 2004 U.S. Court of Appeals Fifth Circuit case said those pre-Roe laws were impliedly repealed by Roe v. Wade, but “because that was a federal court, it is possible that the state prosecutions could think differently.”
“There is enough legal uncertainty that abortion providers and abortion funds in Texas do not want to take the legal risk, which is going to be litigated if they take that legal risk,” she said. “And therefore, they have essentially stopped services. And so pregnant people in Texas essentially do not have access to abortion.”
Who would be penalized: those seeking abortion care, or the health care providers performing the procedure?
The interpretation of pre-Roe laws is that it would be the persons that are providing or performing an abortion, Mohapatra said – but the language says it’s “furnishing the means for procuring an abortion.”
“Now that we are 50 years out from Roe, self-managed abortion is available and common medication abortion is safe. So there is a question about ‘furnishing the means for procuring an abortion,’ whether the pregnant person could be prosecuted under these pre-Roe laws,” she said. “If you have ordered mail-order pills, for example, there’s enough of a legal haze around this that that is why providers have stopped providing abortion services in Texas.”
How far could 'furnishing the means for procuring an abortion' go?
For example, could telling someone where to obtain abortion medication or directing someone to an out-of-state provider be considered “furnishing the means for procuring an abortion”? Mohapatra says she does not believe so.
“I think that is on legally very shaky ground. However, this is something that is ripe for litigation, which costs money and takes time,” she said. “My interpretation of the pre-Roe law is that it can only apply to providers that actually provide an abortion service. However, if you’re going to look at the text, there are, you know, other interpretations which a state court or a federal court might take.”
Where does this leave Texans seeking abortion care?
Texas has tried to criminalize getting abortion medication through the mail, Mohapatra said, and since many bordering states have their own restrictions in place, Texans might have to travel to New Mexico or Colorado to seek an abortion.
“And if somebody seeks abortion medication through many of the available ways, via Mexico or other states, there is a worry that they may be prosecuted,” she said. “The practical effects of how that would happen are unclear, but there is a legal haze here, and vulnerable people are really going to be the ones that suffer from this.”
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