Texas Abortion Law: Pre-Roe V. Wade Era

Before Roe v. Wade, abortion was illegal in Texas except when necessary to save the mother's life. The 1961 Texas Penal Code outlined the following:

- A punishment of two to five years' imprisonment for any person who would procure an abortion for a pregnant woman by administering drugs, using violence, or any other means. The penalty would double if performed without the woman's consent.

- Accomplice liability for anyone who furnishes the means for procuring an abortion knowing the purpose intended.

- A fine of $100-$1,000 for a person who engages in means calculated to produce an abortion but fails to do so.

- If the mother's death is caused by an abortion or attempted abortion, it is murder.

- An exception was made for abortions procured or attempted by medical advice for the purpose of saving the life of the mother.

Texas abortion law before Roe v. Wade: Articles 1191-1194 and 1196 of the Texas Penal Code

Texas abortion law before Roe v. Wade was governed by Articles 1191-1194 and 1196 of the Texas Penal Code. These articles made abortion illegal and criminalized those who performed or facilitated the procedure.

Article 1191 set out a punishment of two to five years' imprisonment for anyone who "procured an abortion" for a pregnant woman by administering drugs or using violence. The penalty would double if the act was done without the woman's consent.

Article 1192 established accomplice liability for anyone who "furnishes the means for procuring an abortion knowing the purpose intended".

Article 1193 imposed a fine of $100-$1,000 for a person who engages in means to produce an abortion but fails to do so.

Article 1194 stated that if the death of the mother was caused by an abortion or attempted abortion, "it is murder."

Article 1196 provided an exception to these laws, stating that an abortion "procured or attempted by medical advice for the purpose of saving the life of the mother" was not criminal.

These articles were part of the 1961 Texas Penal Code and were challenged in the landmark Roe v. Wade case in 1973. The Supreme Court ruled that these laws were unconstitutional and violated a woman's right to privacy, which was protected by the Fourteenth Amendment.

Prior to Roe v. Wade, most states heavily regulated or banned abortions. The Roe v. Wade decision secured women's rights to terminate pregnancies for any reason within the first trimester of pregnancy and sparked legal discussions about abortion, fetus viability, personhood, and the trimester framework.

Punishment for procuring an abortion

Texas abortion statutes in 1961 outlined the punishment for procuring an abortion. Article 1191 of the Texas Penal Code stated that any person who "designedly administers any drug or medicine" or "knowingly procures to be administered ... any drug or medicine" to "procure an abortion" for a pregnant woman could face two to five years' imprisonment. The penalty would double if the act was done without the woman's consent.

The Texas abortion statutes also included an accomplice liability clause, which meant that anyone who "furnishes the means for procuring an abortion knowing the purpose intended" could be prosecuted. Additionally, a fine of $100-$1,000 was set for those who attempted to procure an abortion but failed to do so.

The statutes also addressed the death of the mother, stating that if it was caused by an abortion or attempted abortion, it would be considered murder. However, there was an exception made for abortions "procured or attempted by medical advice for the purpose of saving the life of the mother."

In 1854, Texas passed an abortion law that made performing an abortion a criminal offense punishable by two to five years in prison, except in cases where the mother's life was at risk.

Accomplice liability

Prior to the Roe v. Wade decision in 1973, Texas had laws criminalizing abortion that went as far back as 1854. These pre-Roe laws made it a criminal offence to attempt to "procure the miscarriage of any woman being with child." Under these laws, anyone who aided or abetted an abortion, including by providing information, drugs, or instruments, could be prosecuted. The laws also allowed for civil lawsuits to be brought against those who aided or facilitated an abortion.

After Roe v. Wade, abortion was legalized across the United States, and the Texas abortion laws were found to be unconstitutional. However, Texas continued to have restrictions on abortion, such as requiring parental notification for minors seeking abortions and imposing admitting privileges and heightened standards for abortion clinics.

In recent years, Texas has passed more restrictive abortion laws, such as the Texas Heartbeat Act (SB 8), which prohibits abortion after a fetal heartbeat is detected, typically around six weeks. This law also allows for civil lawsuits to be brought against anyone who provides or facilitates an abortion, including third parties who "aid and abet" the performance of an abortion. The unique aspect of this law is that it prohibits state officials from enforcing the ban and instead allows private citizens to sue abortion providers and anyone who helps someone get an abortion.

The accomplice liability provisions in Texas abortion laws have had significant implications for those who assist or facilitate abortions. They can face legal consequences, including criminal prosecution and civil lawsuits, for their involvement in providing access to abortion services.

The debate around accomplice liability in abortion laws extends beyond Texas and has been a subject of discussion in other states as well. The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in 2022 further shifted the landscape by overturning Roe v. Wade and allowing states to create abortion laws without restriction. This has led to varying approaches across the country, with some states moving towards decriminalization and others introducing stricter laws and enforcement mechanisms, including accomplice liability provisions.

Punishment for attempting to procure an abortion

Texas abortion laws before 1973 were strict, with punishments for attempting to procure an abortion outlined in Article 1193 of the Texas Penal Code. This article set forth a fine of $100 to $1,000 for anyone who engaged in means "calculated to produce" an abortion but failed to do so. The fine was doubled if the attempt was made without the consent of the pregnant woman.

The Texas abortion statutes were first enacted in 1854 and made it a criminal offense to attempt to "procure the miscarriage of any woman being with child." Over the years, these laws were modified and renumbered, but the substance remained largely unchanged until the final text. The laws criminalized abortion and set punishments for those who procured or attempted to procure an abortion, as well as accomplices who furnished the means for procuring an abortion.

In 1908, there were suggestions that the Texas statutes were unconstitutionally vague due to definitional deficiencies. However, the Texas Court of Criminal Appeals dismissed these claims, stating that they did not concur with respect to this question.

In 1971, the same court affirmed a physician's abortion conviction and again held that the state's abortion statutes were not unconstitutionally vague or overbroad. The court held that the state had a "compelling interest" in protecting fetal life and that the Texas homicide statutes were intended to protect individuals "in existence by actual birth," implicitly recognizing other human life that is not yet born.

The Texas abortion laws before Roe v. Wade, which took effect in 1973, provided an exception for abortions "procured or attempted by medical advice for the purpose of saving the life of the mother." However, the laws were written ambiguously, and attempts to clarify and codify exceptions for life-threatening or harmful pregnancies have been rejected by Republican lawmakers in Texas.

Death of the mother

Before Roe v. Wade, abortion was illegal in Texas unless it was necessary to save the life of the mother. It was a crime to get an abortion or attempt one.

In the Roe v. Wade decision, the Supreme Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be.

The Supreme Court's decision in Roe v. Wade was among the most controversial in U.S. history. The decision radically reconfigured the voting coalitions of the Republican and Democratic parties in the following decades. Anti-abortion politicians and activists sought for decades to restrict abortion or overrule the decision.

The Supreme Court's decision in Roe v. Wade was based on the notion that abortion falls under privacy rights. The constitutional right to privacy comes from the Due Process Clause of the Fourteenth Amendment. The Due Process Clause does not explicitly state that Americans have a right to privacy. However, the Supreme Court has recognized such a right going all the way back to 1891.

The justices acknowledged that being forced to continue a pregnancy puts a lot at risk, such as:

• The distress of the mother in having an unwanted child
• Imminent psychological harm
• The physical and mental health of the mother in caring for the child
• Distress for all concerned, associated with the unwanted child

The Roe v. Wade decision also included a discussion of the different views on when life begins. Many in the Jewish faith, for example, believe that life begins at birth. But the prevailing view in the Catholic faith is that life begins at conception. Doctors' views vary, but they tend to lean toward the belief that life begins sometime before birth.

However, the Court did not agree that the Constitution guarantees an absolute right to an abortion. In other words, the privacy right does not prevent states from putting some regulations on abortion. The Court created a framework to balance the state's interests with privacy rights. Acknowledging that the rights of pregnant people may conflict with the rights of the state to protect potential human life, the Court defined the rights of each party by dividing pregnancy into three 12-week trimesters:

• During a pregnant person's first trimester, the Court held, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
• During the second trimester, the Court held that a state may regulate abortion if the regulations are reasonably related to the health of the pregnant person.
• During the third trimester of pregnancy, the state's interest in protecting the potential human life outweighs the right to privacy. As a result, the state may prohibit abortions unless an abortion is necessary to save the life or health of the pregnant person.

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