Performing an abortion is now a felony punishable by up to life in prison in Texas after the state鈥檚 trigger law, which has only narrow exceptions to save the life of a pregnant patient, went into effect Thursday.
The law was when the U.S. Supreme Court issued its judgment in Dobbs v. Jackson, the case that overturned Roe v. Wade and allowed states to set their own laws about abortion.
Abortion clinics across Texas had , fearing prosecution under state laws that were on the books before Roe v. Wade.
Texas now has three significant abortion bans in place and several administrative regulations governing the procedure, setting up a potential conflict as the largest state to ban abortion navigates this new legal landscape.
The trigger law criminalizes performing an abortion from the moment of fertilization unless the pregnant patient is facing 鈥渁 life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.鈥� The statute specifically prohibits prosecuting a pregnant patient who undergoes an abortion.
Violations of the law are punishable by up to life in prison. The statute also says that the Attorney General 鈥渟hall鈥� seek a civil penalty of not less than $100,000, plus attorney鈥檚 fees.
The Texas District and County Attorneys Association has raised concerns about this language.
鈥淚f this sends up a double jeopardy red flag for you, congratulations,鈥� on the group鈥檚 website reads, citing a 1994 case where the Supreme Court ruled that a defendant who is convicted and punished for a criminal offense cannot also have a non-remedial civil penalty imposed against them. Similarly, if a defendant pays a civil fine, they cannot be criminally prosecuted for the same offense.
鈥淏y requiring [the office of the Attorney General] to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine,鈥� the memo reads, 鈥渢he legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion 鈥榯rigger law鈥� crime if any of those civil fines are collected by OAG.鈥�
Charles 鈥淩ocky鈥� Rhodes, a law professor at the South Texas College of Law, said it鈥檚 not yet clear whether the $100,000 penalty would foreclose criminal prosecution.
鈥淚 might try [that defense] if I was representing somebody, but 鈥� I don鈥檛 think there鈥檚 a clear slam dunk there,鈥� he said.
The civil fine, though, may prove to be an important piece of enforcement as more prosecutors come out publicly in opposition to the criminal laws. Several major cities are that prohibit the use of local funds to investigate or prosecute abortion-related crimes, and district attorneys in five large counties 鈥� Bexar, Dallas, Fort Bend, Nueces and Travis 鈥� have said they won鈥檛 bring criminal charges in these cases.
Already, conservative lawmakers have said they intend to propose legislation to allow prosecutors to bring abortion cases outside their own jurisdiction if the local district attorney won鈥檛.
鈥淭hat鈥檚 never been done in Texas, but the Legislature probably can at least start that ball rolling,鈥� said Dallas attorney David Coale. 鈥淭hen, you鈥檝e got prosecutors with conflicting opinions about the same set of facts, and then you鈥檝e really got a zoo.鈥�
Other abortion laws
There are also looming legal questions about how these laws align with the state鈥檚 other abortion statutes. The pre-Roe statutes, which date back to Texas鈥� first criminal code in 1857, come with two to five years in prison, compared with the five years to life in the trigger ban.
鈥淓ach of the laws have a little bit different scope, different punishments and potential arguments about how far they extend,鈥� Rhodes said. 鈥淭he position of the Texas Legislature is going to be that these laws are complementary, rather than in conflict.鈥�
The pre-Roe statutes are currently in effect, but the state Supreme Court has not issued a final ruling on whether they can be criminally enforced going forward. Coale said this legal limbo may push prosecutors to bring charges under the trigger law.
鈥淚f you鈥檙e a prosecutor, why on earth would you go anywhere near that?鈥� he said. 鈥淵ou鈥檙e going to charge something under the new statute in the most limited way you can that clearly doesn鈥檛 conflict with anything in the old statutes.鈥�
If a prosecutor brings a case under the trigger law, Coale said defendants will likely try to argue that the statutes conflict. But much of this will remain theoretical until a test case is identified and charged, which may not happen immediately.
鈥淢y expectation is what鈥檚 going to happen is exactly what happened in SB 8,鈥� he said, referring to the civilly enforced ban on abortions after about six weeks of pregnancy. 鈥淧eople are going to err on the side of caution and 鈥� the deterrent effect is going to be huge.鈥�
One significant distinction between the two laws is that, while both statutes criminalize the person who performs the illegal abortion, the pre-Roe statutes also allow charges to be brought against anyone who 鈥渇urnishes the means鈥� for an abortion.
鈥淭he trigger law really is targeted at the abortion provider, while the old law 鈥� also has this additional basis of accomplice liability for the person who procures the means to be able to have an abortion,鈥� said Rhodes. 鈥淭he law is vague as to what that really means though.鈥�
In the age of medication abortion, where people can get abortion-inducing pills mailed to their homes from overseas pharmacies or advocacy networks, identifying who performed or furnished the means for an illegal abortion will likely become more difficult.
Already, nonprofit abortion funds that help people travel out of state have stopped their work, fearing under the pre-Roe statutes. Lawmakers in Texas and in other conservative states have discussed finding ways to prohibit interstate travel for abortion.
鈥淧eople are saying some things in their zeal about abortion that are just not very democratic, and there鈥檚 no other polite way to say it,鈥� Coale said.
Even in jurisdictions where police and prosecutors aren鈥檛 actively working to identify and charge these cases, the threat of civil action still looms. Texas remains under Senate Bill 8, which allows any private citizen to sue anyone who 鈥渁ids or abets鈥� in an abortion after about six weeks of pregnancy.
With $10,000 per abortion on the line, Coale said, there鈥檚 significant motivation for private citizens to try to identify people who have had an abortion 鈥� and, in the process, bring them into the criminal justice system.
鈥淎s long as we have SB 8, people are going to be out there 鈥� trying to get that $10,000 penalty,鈥� he said. 鈥淲ho else will have their hand in it will depend on who is in charge.鈥�
