Texas Abortion Law
The Texas abortion law prohibits physicians from performing abortions once a fetal heartbeat is detected. The Texas Heartbeat Bill became state law with a trigger in place that subjected it to a Supreme Court ruling which has now effectively enabled it. This legislation went into effect on September 1, 2021, sparking heated debates and legal challenges throughout the nation.
March 24, 2024 Update
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. This move comes as Texas, along with 13 other states, has ceased nearly all abortion services following the U.S. Supreme Court’s decision to overturn Roe v. Wade. The guidance has not yet been adopted by the board; it has been released for public comment to address physicians’ confusion regarding the abortion bans. Despite the guidance, critics, including three women suing Texas over its abortion bans and the Center for Reproductive Rights, argue that it falls short of providing clear exceptions and does not adequately protect lifesaving care for pregnant mothers. The Texas Medical Board has stated that it is not within their jurisdiction to determine what the law should be but rather to elaborate on how physicians can provide care within the current legal framework.
December 2023 Update on Texas Abortion Law
The Texas Supreme Court on December 11, 2023, in In re State of Texas, No. 23-0994, took up the lawsuit of Kate Cox who asked Texas courts to authorize the termination of her pregnancy after she learned her unborn child had full trisomy 18. Trisomy 18, also known as Edwards Syndrome, is a disorder when babies have 3 copies of chromosome 18, instead of 2. Infants with Trisomy 18 are usually small and sadly 90-90% of those born with Trisomy 18 do not live beyond the first year. Those who do survive will not be able to independently. The Center for Reproductive Rights brought the lawsuit claiming the pregnancy posed a risk to Cox’s health. A district judge ruled that neither Cox or her doctor could be prosecuted for conducting an abortion. The Texas Attorney General filed an emergency petition asking the Supreme Court to overturn this ruling. The Texas Supreme Court recognized that only a doctor, not a judge or trial court, could decide whether a pregnant woman had a life-threatening physical condition making an abortion necessary to save her life or to save her from “a serious risk of substantial impairment of a major bodily function.” In this case, the doctor did not attest that Trisomy 18 in the unborn child created a life-threatening condition or one that created a serious risk of substantial impairment of a major bodily function. As such, no court could grant the pre-authorization that Cox was seeking. The court also noted a ” woman who meets the medical-necessity exception need not seek a court order to obtain an abortion.”
Can you get an abortion in Texas?
Generally, no. Doctors face criminal prosecution for abortions after a fetal heartbeat is detected. The abortion laws in Texas continue to be challenged and subject to various court rulings. For example, on August 4, 2023, a Texas judge granted a temporary injunction clarifying what abortions due to medical emergencies are including pregnancies that are unsafe for the mother among other things. Existing laws prohibit all abortions after six weeks of pregnancy except for medical emergencies, and the passed heartbeat bill legislation prohibits providers from performing an abortion after a fetal heartbeat is detected. The court’s ruling on August 4, 2023, provides a good faith exception for doctors who perform an abortion under certain circumstances. The State will almost certainly appeal this decision.
Can I be criminally prosecuted for an abortion in Texas?
The Texas abortion law does not create a criminal cause of action against the mother or parent. It does create a criminal cause of action against doctors. Texas abortion laws changed on Aug. 25, effectively outlawing all abortions in the state. The U.S. Supreme Court ruling on Dobbs v. Jackson triggered the Texas law in June 2022. The decision overturned Roe v. Wade, the 1973 Supreme Court decision that decriminalized abortion nationwide. The 2022 ruling allowed states to set their own abortion laws.
Under the new Texas abortion law, the woman who had the abortion can’t be prosecuted, but anyone who provided or aided in her abortion is open to criminal prosecution. Even before the Supreme Court ruling, Texas abortion laws were restrictive, and recent changes to the law had already limited the work of abortion clinics around the state, with many declining to offer abortion services for fear of prosecution under Texas laws. The Texas legislature passed the trigger law on abortion in 2021. It opens up doctors and medical staff to criminal prosecution and allows for civil lawsuits against the same party. Are you being criminally prosecuted for assisting an abortion? If so, you need legal representation as soon as possible. Contact the criminal defense team at Varghese Summersett for a free consultation. We will discuss your options and the potential penalties you face and create a plan of action tailored specifically to your needs. In this post, we’ll explain the most recent changes to Texas’ abortion laws,
How has the Texas abortion law changed?
In September 2021, the Texas legislature changed the law to effectively ban most abortions once cardiac activity is detected, usually about six weeks into a pregnancy. The change was particularly controversial because many women don’t know they’re pregnant at that point, as it would only be two weeks after a missed menstrual cycle. The state also resurrected a 1925 law that opens abortion providers to lawsuits and civil penalties.
September 1, 2023: Affirmative Defense for Abortion Prosecution
A new affirmative defense was created that applies to the prosecution of abortions. HB 3058 creates an affirmative defense for doctors and health care who perform an abortion in two scenarios:
- An ectopic pregnancy (which is when a fertilized egg implants and grows outside the main cavity of the uterus); and
- A premature rupture of the amniotic membrane in a pre-viable embryo (in other words, the mother’s water broke before the embryo was viable).
To prove the affirmative defense, the defendant must show that he or she exercised reasonable medical judgment in providing medical treatment for those complications. Keep in mind that as an affirmative defense, it is one that must generally be raised in court. In other words, it may not prevent an arrest and prosecution; if proven it would mean that criminal responsibility should not attach. The new law provides the same defense may be raised in a hearing with the Texas Medical Board. This bill also protects pharmacists and pharmacies who provide drugs or medications to a doctor to whom this defense applies This new law goes into effect September 1, 2023.
What is the Texas law that punishes people who perform or assist with abortion?
There are a number of laws on the books that penalize abortion. Some are new, such as the heartbeat and trigger law, and some have been in place for some time. Here’s an overview:
- Texas Government Code Sec. 171.203 is commonly called the “heartbeat law.” This statute states that “a physician may not knowingly perform or induce an abortion on a pregnant woman unless the physician has determined, in accordance with this section, whether the woman’s unborn child has a detectable fetal heartbeat.
This law creates a civil penalty of $10,000 for anyone performing an abortion after a fetal heartbeat is detected. There is no criminal penalty, but it allows any private citizen to sue for the $10,000, court costs, and attorney fees.
- Health and Safety Code Section 171.018 sets out a penalty for doctors who perform an abortion without providing a sonogram, having the mother listen to the heart, and providing certain written and verbal explanations as a “misdemeanor punishable by a fine of up to $10,000.”
- 171.065 makes it a state jail felony for a person to intentionally, knowingly, or recklessly cause a drug-induced abortion.
- 171.102 makes it a state jail felony to perform a partial-birth abortion.
- 171.153 makes it a state jail felony to perform a dismemberment abortion.
What is the punishment for performing an abortion in Texas?
The Texas abortion law makes it a second-degree felony “for a person who knowingly performs, induces, or attempts an abortion.” The penalty is increased to a first-degree felony if the unborn child dies due to the offense. Performing or aiding an abortion resulting in the unborn child’s death is a first-degree felony punishable by five to 99 years in prison, according to Texas Government Code Sec. 170A.002. Under the law, administrative penalties include the mandatory revocation of a medical, nursing, or pharmacy license. The statute also allows the Texas attorney general to seek a civil penalty of not less than $100,000, plus attorney’s fees and costs.
What are the exceptions under Texas abortion law?
The 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.” There is no exception for rape or incest.
Can a pregnant patient be criminally prosecuted for abortion under Texas abortion law?
No. The statute explicitly prohibits prosecuting a pregnant patient who undergoes an abortion.
Who can be criminally prosecuted under the Texas abortion law?
Anyone who performs or aids an abortion or intends to perform or aid an abortion could be criminally prosecuted under the Texas abortion law. Although a person receiving an abortion cannot be prosecuted under the law, anyone who helps the person have an abortion can be. Among those who could be sued under Texas abortion law include:
- Medical personnel, including doctors and nurses
- A family member or friend who helps pay for the procedure
- A pharmacist who sells an abortion medication
- Anyone who hands a medication abortion pill to another person
- Anyone who drives the patient to a clinic or the place of the abortion (The ride-sharing companies Uber and Lyft have said they will cover the legal fees of any of their drivers sued under the law.)
Who can criminally prosecute under Texas abortion law?
Texas district attorneys can criminally prosecute abortions. Former Tarrant County Criminal District Attorney Sharen Wilson announced her office will enforce Texas abortion law. However, other DA offices across the state, including in Dallas, Austin, and San Antonio, have publicly announced they would refrain from prosecuting.
Who can sue under the Texas abortion law?
Almost anyone. The legal “standing,” which determines whether one person can sue another for an injury or harm, is not necessary under the new Texas abortion law.
Can a rapist sue a victim if she aborts the pregnancy?
No. The perpetrator of rape, sexual assault, or incest can’t sue the victim or anyone who provided or assisted the victim in receiving an abortion. But a non-perpetrator can sue over an abortion provided to the survivor, regardless of the circumstances surrounding the pregnancy.
Can a legal sex partner sue under Texas abortion law?
Yes, a man who impregnated the patient through legal, consensual sex can sue anyone who provides or aids in the abortion.
Can multiple plaintiffs sue the same defendant for the same abortion in Texas?
Yes, but only one plaintiff could collect damages. A Texas court cannot collect relief from the same defendant for the same abortion more than once. The law doesn’t prevent one defendant from facing 10 different lawsuits from 10 different plaintiffs for the same abortion, but only one of the plaintiffs could collect damages. This scenario could potentially cost significant time and money for the defendant.
Does the government enforce the Texas abortion law?
No. The law’s authors included provisions that prevent the government from enforcing or attempting to enforce the law. This was a legal maneuver by the law’s authors to help the law withstand any court challenges to its constitutionality.
How long does a plaintiff have to sue someone over a Texas abortion?
Plaintiffs have up to four years from when an abortion occurred to file a lawsuit against someone for performing or aiding in an abortion.
Is it illegal for a Texas resident to get an abortion in another state or country?
No. The new law, as stated earlier, prevents prosecution or lawsuits directed against people who get abortions. Furthermore, the new laws do not apply to anyone providing or assisting an abortion outside of Texas.
Does the Texas abortion law allow plaintiffs to sue anyone across the state?
Yes, the new Texas abortion law allows a plaintiff to file a suit against anyone in the state from the county of their residence. The law also prevents defendants from attempting to move the lawsuit venue to a different court unless the plaintiff agrees to the move. This part of the law could potentially cause significant expenses for defense attorneys if travel is necessary to argue multiple cases across Texas.
Is birth control and emergency contraception still legal in Texas?
Birth control and emergency contraceptives, such as Plan B or another morning-after pill that helps prevent pregnancy within 72 hours after unprotected sex, remain legal under Texas abortion laws. Plan B pills are different from medication abortion pills. The U.S. Supreme Court added in its decision to overrule Roe v. Wade that the constitutional right to access contraceptives remains.
