DALLAS — If the Supreme Court overturns Roe v. Wade, what happens to Texas state laws that were in place prior to the landmark ruling on abortion rights almost 50 years ago?
In Texas, where elective abortions already are restricted already to the first six weeks of gestation, a “trigger law” signed by the Gov. Greg Abbott would outlaw abortion within 30 days of the holding.
A court reversal of Roe would leave it to individual states to establish abortion laws. Texas and 12 other states have trigger laws that would outlaw or almost completely ban abortions if the 1973 decision in the case that originated in Dallas County is tossed in a ruling that could come as soon as this week. Before the court now is the Dobbs v. Jackson Women’s Health case from Mississippi, which had a leaked preliminary opinion indicated justices are ready to overturn Roe.
In March, Rep. Briscoe Cain, R-Deer Park, raised the potential of future prosecution, sending cease-and-desist letters to eight abortion funds in Texas saying that “Texas law imposes felony criminal liability on any person who ‘furnishes the means for procuring an abortion knowing the purpose intended.’”
Cain is referring to a provision in the Texas penal code that Roe vs. Wade had challenged the enforceability of. His efforts are being challenged in federal court in a lawsuit filed by former state Sen. Wendy Davis.
Pre-Roe statutes
After the U.S. Supreme Court decided in favor of Jane Roe, who was later identified as Norma McCorvey, Texas never repealed pre-Roe statutes, so the criminal abortion laws have become sort of “zombie laws” says Mary Ziegler, a law professor at Florida State and a visiting professor at Harvard Law School.
In other words, those laws could be resurrected when Roe is overturned and could go back into effect, if district attorneys choose to enforce them. Some, including Dallas DA John Creuzot, already have announced they will not.
There have not been many scenarios where “zombie laws” have gone back into effect, Ziegler says, explaining that it’s fairly “novel.”
“Trigger laws” are different from pre-Roe statutes, and many have harsher penalties than legislation passed before the 1973 decision. Texas’s governor signed a law in June that would go into effect 30 days after Roe is overturned.
Jonathan Mitchell, former solicitor general of Texas and the mastermind behind Texas’ Senate Bill 8 abortion restrictions that went into effect Sept. 1, told The Dallas Morning News, that he believes the state’s pre-Roe statutes that were never repealed will go into effect immediately.
“The state’s pre-Roe criminal abortion statutes have never been repealed and continue to exist as the law of Texas. They will become immediately enforceable if Dobbs overrules Roe v. Wade, and they can be enforced against anyone who violated the statutes by aiding or abetting abortions performed in Texas,” Mitchell said.
He acknowledged, however, that “it’s unlikely that any district attorney will bring criminal charges against abortion providers based on the state’s pre–Roe v. Wade abortion statutes, because most abortion providers are located in liberal cities with Democratic district attorneys. But people who have aided or abetted abortions could be prosecuted if their conduct falls within the jurisdiction of a district attorney who is willing to bring charges.”
Mitchell is the attorney for the defendants in Davis’ recent lawsuit, including Cain who has announced that he will introduce legislation next session that will empower district attorneys from throughout the state to prosecute violations of the state’s abortion laws when district attorneys refuse to.
Retroactive enforcement
Mitchell and Cain say they will be able to sue those who violate the law now, such as abortion funds, but Ziegler says retroactive enforcement may not be permissible.
“Mitchell’s theory that you could have retroactive enforcement is definitely very controversial. And there are questions of fairness involved, too, obviously, because punishing people who wouldn’t even know their conduct was illegal raises fundamental questions of fairness right because how are you supposed to conform your conduct to the law if you don’t know what the law is.” Zielger explained.
William Baude, the director of University of Chicago Law school’s Constitutional Law Institute said it’s a gray area in the law.
“This is sort of where the technicality that the law has always been there, runs into this strong intuition that people shouldn’t go to jail for doing what the court told them was okay,” Baude explained.
Though Baude says a post-Roe world would bring a lot more questions into the courts.
“People might think that if the Supreme Court overrules Roe vs. Wade that’s going to be kind of taking the courts out of abortion. And I think the truth is, for better or worse, there are going to be another round of complicated constitutional questions including retroactivity,” Baude explained.
