Texas Abortion Trigger Law: Understanding The Ban

Texas is one of over a dozen conservative-led states that have passed so-called trigger laws designed to end abortion access for almost all residents if Roe v. Wade is overturned. The Texas trigger law, or Human Life Protection Act, would outlaw abortions in Texas if the U.S. Supreme Court reverses Roe v. Wade. The law would make nearly all abortions in the state felony crimes, with doctors facing life in prison and fines of up to $100,000. The law would take effect 30 days after the U.S. Supreme Court officially overturns Roe v. Wade.

The Texas abortion trigger law's history

The history of abortion laws in Texas is a long and complex one. In 1854, Texas passed a law that made performing an abortion, except in the case of preserving the life of the mother, a criminal offence punishable by two to five years in prison. This law was in place until the US Supreme Court's decision in Roe v. Wade in 1973, which meant the state could no longer regulate abortion in the first trimester.

However, following this ruling, the State of Texas decided not to repeal abortion laws that had become unconstitutional and unenforceable. In 1992, a law was passed that stated only Texas-licensed physicians could perform an abortion in the state. A law passed in 1997 gave physicians, nurses, healthcare provider employees, and hospital employees the ability to refuse to participate directly or indirectly in the procedure. Private hospitals were allowed to refuse to provide their facilities for abortion services unless a physician determined that the pregnant woman's life was in immediate danger.

In 2003, the Texas legislature passed a law that required all abortions after 16 weeks to take place in an outpatient surgery center and mandated a 24-hour waiting period before women could get an abortion. Clinics were also required to give women a "Woman's Right to Know" pamphlet, which included factually inaccurate medical information.

In 2011, Texas introduced a mandatory ultrasound law, requiring women seeking an abortion to have an ultrasound before being allowed to have the procedure. This law was controversial, as it required women, even in cases where severe birth defects had been detected, to undergo an additional ultrasound, "administered by her abortion doctor, and [she had to] listen to a state-mandated description of the fetus she was about to abort".

In 2013, a state Targeted Regulation of Abortion Providers (TRAP) law was applied to medication-induced abortions and private doctor's offices. This law was later deemed unconstitutional by a federal district judge, who found that the law placed an undue burden on a person seeking to have an abortion.

In 2016, the Whole Woman's Health v. Hellerstedt case struck down several of Texas's abortion laws due to the fact that they posed an "undue burden" to abortion access. The Court found that requirements for a physician to hold nearby admitting privileges and for abortion clinics to comply with standards for surgical centers were substantial burdens.

In 2017, Texas introduced a bill that would have banned abortion in almost all cases. It did not pass.

In 2021, the Texas Legislature passed the Texas Heartbeat Act (SB 8), banning abortion after the detection of embryonic or fetal cardiac activity, which typically occurs around six weeks into a pregnancy, before many women are aware they are pregnant. This Act relied on enforcement by private individuals through civil lawsuits, thus evading pre-enforcement challenges based on Roe v. Wade.

The trigger law, HB 1280 ("Human Life Protection Act"), was signed into law on June 6, 2021. It took effect on August 25, 2022, 30 days after Roe v. Wade was overturned by the US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. The law makes abortion a first-degree felony, with exceptions only when there is a risk of death or substantial impairment of a major bodily function of the mother.

Who can be prosecuted under the law

The Texas abortion law, also known as the "Human Life Protection Act", makes it a second-degree felony for anyone who "knowingly performs, induces, or attempts an abortion". The penalty increases to a first-degree felony if the unborn child dies as a result, which carries a punishment of five to 99 years in prison.

The law states that anyone who provides or aids in an abortion can be criminally prosecuted. This includes medical personnel, such as doctors and nurses, as well as pharmacists who sell abortion medication. The law also applies to those who drive patients to a clinic or the location of the abortion. Notably, ride-sharing companies Uber and Lyft have stated that they will cover the legal fees of any of their drivers who are sued under this law.

The Texas abortion law does not allow for prosecution of the woman who had the abortion, nor does it allow a rapist to sue his victim if she aborts the pregnancy. However, a non-perpetrator can sue over an abortion provided to a survivor, and a legal sex partner can sue anyone who provides or aids in the abortion.

Exemptions and exceptions

The Texas abortion law criminalizes performing an abortion from the moment of fertilization unless the pregnant patient faces a "life-threatening physical condition aggravated by, caused by, or arising from a pregnancy". In other words, the only exception to the law is if the pregnant woman's life is at risk. There is no exception for rape or incest.

For the exception to apply, three factors must be met:

• A licensed physician must perform the abortion.
• The patient must have a life-threatening condition and be at risk of death or "substantial impairment of a major bodily function" if the abortion is not performed.
• The physician must try to save the life of the fetus unless doing so would increase the risk of the pregnant patient's death or impairment.

In addition, the Texas Medical Board has proposed guidance for exceptions to the state's multiple abortion bans, aiming to clarify what qualifies as an exception in medical emergencies. However, critics argue that the guidance falls short of providing clear exceptions and does not adequately protect life-saving care for pregnant women.

Punishment for doctors

Doctors who perform abortions in Texas can face a range of criminal and civil penalties. Under the Texas abortion law, physicians who carry out abortions can be charged with a second-degree felony, and if the unborn child dies as a result, the charge is elevated to a first-degree felony. The penalty for a first-degree felony is five to 99 years in prison, and the law also mandates the revocation of medical, nursing, or pharmacy licenses. The Texas Attorney General can also seek a civil penalty of at least $100,000, plus attorney's fees and costs.

The Texas abortion law, also known as the "trigger law" or the "Human Life Protection Act", was passed by the Texas Legislature in 2021 and took effect in 2022 after the U.S. Supreme Court overturned Roe v. Wade. The law makes nearly all abortions in the state felony crimes, and doctors can face life imprisonment and fines of up to $100,000. The law includes an exception for abortions performed to save the life of the pregnant woman or to prevent severe injury.

In addition to the criminal penalties, doctors who perform abortions in Texas may also face civil penalties. Texas law allows for private citizens to sue doctors who perform abortions and collect $10,000 in damages, as well as legal fees. The law also allows for civil penalties for doctors who do not provide certain information or perform certain procedures before carrying out an abortion. For example, doctors can be fined up to $10,000 for not providing a sonogram or having the mother listen to the fetal heartbeat before the procedure.

The Texas abortion law also allows for administrative penalties to be imposed by the Texas Medical Board. These penalties can include the revocation or suspension of a doctor's medical license, as well as fines of up to $5,000. The law also allows for licensing boards to revoke the licenses of other healthcare professionals who perform or assist with abortions.

While the Texas abortion law imposes strict penalties on doctors who perform abortions, it is important to note that the law does provide some protections for doctors in certain circumstances. For example, the law includes an exception for abortions performed to save the life of the pregnant woman or to prevent severe injury. Additionally, the Texas Legislature passed a bill in 2023 that provides legal cover for doctors who terminate a pregnancy to treat life-threatening complications, such as ectopic pregnancies or pre-viable premature membrane rupture. This bill also protects pharmacists and pharmacies from criminal and civil penalties in these situations.

The impact on pregnant people

The Texas abortion law, also known as the "Human Life Protection Act", prohibits physicians from performing abortions once a fetal heartbeat is detected, which can be as early as five or six weeks into a pregnancy. This law has had a significant impact on pregnant people in Texas, as it effectively bans most abortions and limits their options for reproductive healthcare.

One of the main impacts of the Texas abortion law is that pregnant people in Texas may not be able to access safe and legal abortions, even in cases of medical emergencies or complicated pregnancies. The law makes it a felony for anyone to perform or aid in an abortion, with the exception of cases where the pregnant person's life is at risk. This means that doctors and other medical professionals can face criminal prosecution and hefty fines if they provide abortion services. As a result, many abortion clinics in Texas have stopped offering abortion services, and those who need an abortion may have to travel out of state to access one.

The law also has implications for the health and safety of pregnant people. Due to the limited access to abortion, some pregnant people may resort to unsafe methods or seek abortions from unlicensed providers, putting their health and lives at risk. Additionally, the lack of access to abortion can lead to increased rates of infant mortality, as pregnant people with high-risk pregnancies may not be able to get the necessary medical care.

Another impact of the Texas abortion law is the financial burden it places on pregnant people. Those who can afford to travel out of state to obtain an abortion will incur additional costs for transportation, accommodation, and the procedure itself. For those who cannot afford to travel, the only option may be to continue with the pregnancy, which can also bring financial strain.

The Texas abortion law also affects the mental health of pregnant people, as they may experience stress, anxiety, and trauma due to the limited options available to them. The law can also impact pregnant people's ability to make their own healthcare decisions, as they may feel pressured to continue with a pregnancy that they are not ready for or that poses a risk to their health.

Overall, the Texas abortion law has far-reaching consequences for pregnant people in the state, limiting their access to safe and legal abortions, impacting their physical and mental health, and placing a financial burden on them.

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