WASHINGTON — A “trigger ban” on abortion that takes effect in Texas on Thursday allows harsher penalties than other state laws regulating reproductive rights and further complicates an array of abortion laws likely to face continued court challenges.
The trigger ban passed by the Texas Legislature in 2021 kicks in 30 days after the U.S. Supreme Court issued made its ruling overturning Roe vs. Wade final. The court issued that final judgment for the Dobbs vs. Jackson Women’s Health Organization case from Mississippi on July 26, starting the countdown.
The ban, similar to the pre-Roe ban, makes performing an abortion a felony. This includes surgical abortion procedures and medical abortion pills administered anytime after conception.
A big difference between the trigger law and other laws on abortion is increasing the criminal penalties for anyone providing an abortion. Under the pre-Roe ban which took effect almost immediately after Roe was reversed, violations can lead to a five-year maximum prison sentence and a fine of $100 to $1,000. The Roe case originated in Dallas County.
If a provider is convicted under the trigger ban, they could face up to life in prison and the attorney general can impose a minimum fine of $100,000 per abortion. This is the only penalty the attorney general’s office can enforce, but Attorney General Ken Paxton has offered to aid county prosecutors bring criminal charges under the law.
District attorneys in Dallas and some other populous Texas counties have promised not to bring charges under the new law. However, neighboring counties Denton and Tarrant said they plan to prosecute under the law.
Before the Supreme Court decision, performing an abortion after about six weeks of pregnancy could have led to a civil lawsuit under Senate Bill 8.
Similar to SB 8 and the pre-Roe ban, the trigger law has an exception to save the patient’s life or to prevent significant health risks. However, as states moved to restrict abortions, doctors have expressed concern over the lack of specific guidance for medical emergencies.
The pre-Roe laws were created in 1857, before the Civil War, as an attempt to stop declining white birth rates amid a rising immigrant population, The Texas Tribune reported. The laws governed a very different landscape and social attitude on abortion, when the medical field was still developing and abortions were performed using less safe methods.
Typically, the pre-Roe laws were only used when the mother died or was dying as a result of an abortion. The ban was altered and clarified throughout the years until it was effectively blocked by Roe in 1973, although never formally repealed.
When Roe fell, Attorney General Ken Paxton was quick to issue an advisory that Texas providers could once again be criminally prosecuted under these laws.
Abortion providers and advocates in Texas challenged the enforcement of the pre-Roe ban after the high court acted, but the Texas Supreme Court allowed the law to continue, even as the trigger ban takes effect.
What does this mean for other abortion laws in Texas?
With the implementation of the trigger ban, there may much change in the status of abortion in Texas since clinics effectively ceased abortion services after Roe’s reversal. After the law goes into effect, district attorney’s are likely to prosecute providers using the trigger ban over the existing laws.
“Even though there’ll be a lot of laws on the books that will purport to do slightly different things, at the end of the day, most people’s conduct is going to be shaped by the trigger law alone,” said Joanna Grossman, a law professor at Southern Methodist University in Dallas.
However, this doesn’t render the pre-Roe laws or SB 8 irrelevant.
Kari White, the lead investigator of Texas Policy Evaluation Project said SB 8 can still be used to penalize those who aid and abet in an abortion, such as someone who drives the pregnant person to an abortion clinic in another state. Additionally she said the pre-Roe laws could be used to prosecute abortion funds that help a patient pay for an abortion.
White said both criminal laws on abortion have exceptions for miscarriages. However, she added, if a patient seeks treatment for a miscarriage while there is still fetal cardiac activity, the provider could technically still be penalized under SB 8.
“I think there are the possibilities for these laws to work together in a way that further compromises care for patients and really puts providers in a situation where they are practicing medicine based on feat of legal repercussions and not necessarily practicing in a way where they are really focusing on the scientific evidence on what is best for their patient,” White said.
How will this impact pregnant people?
In laws relating to abortion like the trigger ban and pre-Roe ban, there are specific provisions that prevent criminal prosecution of the pregnant person getting or self-inducing an abortion.
However, White said there are instances in Texas and other states where pregnant people are prosecuted through other criminal laws if suspected of self managing an abortion. Some examples are chemical endangerment laws, mishandling of human remains, concealment of a birth, practicing medicine without a license, child abuse or assault.
A study published in August by If/When/How found 61 cases between 2000 and 2020 in which people were criminally investigated or arrested for allegedly ending their own pregnancy. These cases occurred in 26 states including Texas.
“I think that it is going to just have – and has already had – a far greater chilling effect than what we even saw during SB 8,” White said.
Notably, Lizelle Herrera was indicted with murder in April in Starr County for allegedly self-inducing an abortion. However, the indictment was swiftly dropped.
Grossman said she could see pregnant people facing criminal charges relating to an abortion happening in the future and becoming more common as people turn to medical abortion pills.
A week after Texas implemented SB 8 in 2021, orders for medical abortion pills from international nonprofit Aid Access spiked by 1,180%, according to a study by JAMA Network Open.
Texas has also implemented Senate Bill 4, which criminally prohibits shipping medical abortion pills through the mail and limited the pills’ use to the first 49 days of gestation. Still, this law does not allow prosecution of those who take the pill, just those who provide them.
Status of trigger laws in other states
Thirteen states total had a trigger law intended to take effect after Roe’s reversal. Some states continue to face legal battles with abortion advocates and providers who challenged the constitutionality of the bans.
Kansas, which has some of the closest abortion clinics for Dallas residents seeking abortions, was the first state to put abortion access to a vote. On Aug. 3, voters overwhelmingly decided to keep a constitutional protection to abortion, shocking many because of it’s conservative voting history.
More states are expected to vote on similar measures.
In the first federal action against a state abortion ban, the U.S. Justice Department filed a lawsuit against Idaho’s trigger law on Aug. 2, alleging it violates the Emergency Medical Treatment and Labor Act, a federal law that requires anyone coming to a medical facility for emergency treatment to be stabilized.
Unlike Texas and other state’s laws that offer exceptions for medical emergencies, Idaho’s law criminalizes all abortions but offers a defense if a provider was acting to save the patient’s life. The law was scheduled to begin on Aug. 25 like the Texas trigger law.
Texas is one of the several states weighing in on the DOJ’s lawsuit.
In Texas, voters could decide on amendments to the state constitution, only after the measure is approved by two-thirds of each legislative body. Both are controlled by Republicans and have not indicated a motion for a constitutional amendment on the matter.
Grossman added it’ll be important to watch how the implementation of these laws impact political power and voting in Texas. With the current makeup of the state Legislature, she said it is unlikely there will be any clarification to the medical emergency provision, and lawmakers may instead work to limit interstate travel for abortions.
“I don’t think the laws are going to become more abortion friendly until power changes hands,” Grossman said.
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