Abortion in Texas: Current Law
From 2014-2021, 50,000-55,000 legal abortions occurred each year in Texas. Prior to HB 2’s passage in the 2013 special session, which closed half of Texas’ abortion facilities, Texas averaged between 60,000-80,000 annually. Black Texans had the highest rates at five to six times those of white Texans and double those of Hispanic Texans. Eighty percent of abortions were performed prior to 10 weeks into the pregnancy. Sixty percent were performed on women who were already mothers with other children.
Abortion in Texas is now illegal. In 2021, the Texas Legislature passed HB 1280—a so-called “trigger ban.” The U.S. Supreme Court ruling in Dobbs “triggered” the criminal prohibition against abortion to take effect. Under HB 1280, a person may not perform, induce, or attempt an abortion. The only exception is if a physician exercises “reasonable medical judgment” in determining a woman has “a life-threatening physical condition” or is at “a serious risk of substantial impairment of a major bodily function.”
Doctors and lawyers have testified that they do not know what constitutes “a serious risk of substantial impairment of a major bodily function.” Additionally, “reasonableness” would be a fact question for a jury or judge. Furthermore, while current law does not penalize a woman seeking an abortion, the statute presumably applies to anyone that “aided” the woman. Texas Penal Code Chapter 7 governs “accomplices.” Texas’s law provides broad prosecutorial discretion that might apply to anyone reimbursing expenses, providing transportation, or even pastoral counseling. If convicted, a person performing, inducing, or attempting the abortion has committed a first degree felony with a punishment range of 5-99 years.
In addition to the criminal penalty, a person is subject to a civil penalty “of not less than $100,000 for each violation.” The statute requires the Attorney General to file an action to recover the civil penalty, and the state may recover any attorney fees and costs incurred in bringing the lawsuit, in addition to the penalty. The statute does not prescribe the burden of proof required to recover the civil penalty. Most civil penalties only require the lower burden of “a preponderance of the evidence” rather than the higher burden of “beyond a reasonable doubt.” This civil penalty is in addition to the civil lawsuits authorized by SB 8 or elsewhere in law.
Doctors and anyone “aiding and abetting” face a third kind of penalty enforceable by private citizens. Texas passed SB 8 in 2021. SB 8 prohibited abortion after a fetal heartbeat could be detected; however, this provision is now moot because of Dobbs and HB 1280. The part of SB 8 that is far from moot are the private civil enforcement provisions (lawsuits). In these lawsuits, any private citizen can receive monetary compensation from the provider or anyone “aiding and abetting,” such as an employer paying travel costs or a family member that provides transportation. Additionally, the suits have unique and pernicious procedures that favor the plaintiff. For instance, a plaintiff is entitled to attorney fees if the plaintiff prevails in court, but the defendant cannot recover attorney fees if they prevail. In another example, a plaintiff can bring a suit in their home county, and a judge may not approve a change of venue unless all parties agree in writing. Litigation challenging the constitutionality of these provisions is ongoing.
Examining the differences between the pre-Roe law and Texas’ new trigger ban reveals differing concerns of the legislatures that enacted them. The pre-Roe statute carries a penalty range of only 2-5 years in prison for the termination of a fetus. The trigger ban is 5-99 years in prison. The pre-Roe statute increases the offense to murder if the mother dies during the abortion. The trigger ban does not address what happens if the woman dies. The pre-Roe statute left “medical advice” to the doctor to decide when abortion was necessary “for the purpose of saving the life of the mother.” The trigger ban, by contrast, puts doctors—and thereby women—in jeopardy with the vague exception of when there is “serious risk of substantial impairment of a major bodily function,” and assigning non-medical professionals the task of deciding the “reasonableness” of that medical decision. Legally, women and doctors in Texas are in a worse position than they were before Roe in 1973.