On July 26, the United States Supreme Court issued its final judgment in Dobbs v. Jackson Women’s Health Organization. As a result, Texas’ trigger law, the Human Life Protection Act, takes effect on Aug. 25 – the 30th day after issuance of a judgment in a case overturning Roe v. Wade. See H.B. 1280, 87th Reg. Session 2021.
Texas’ trigger law makes abortion a second-degree felony and elevates the punishment to a first-degree felony if an unborn child dies as a result of the abortion. The definition of abortion, which remains unchanged from pre-Dobbs statutes, is “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.” Tex. Health & Safety Code §245.002. “Unborn child” is defined as encompassing the period from fertilization through birth. Tex. Health & Safety Code §170A.001(5). Abortion in Texas does not include birth control devices, oral contraceptives, miscarriage care, ectopic pregnancy care (when an embryo grows outside the uterus) or medical care with the intent to save/preserve the life of an unborn child. Tex. Health & Safety Code §170A.001(1).
Beginning on Aug. 25, Texas will prohibit an abortion except when “in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” Tex. Health & Safety Code §170A.002(b)(2).
Under the trigger law, abortions must be performed in a manner that provides the best opportunity for the unborn child to survive unless that manner would create a “greater risk of the pregnant female’s death” or “a serious risk of substantial impairment of a major bodily function of the pregnant female.” Tex. Health & Safety Code §170A.002(b)(3)(A)-(B).
The trigger law requires “reasonable medical judgment,” which it defines as meaning “a medical judgment made by a reasonably prudent physician, knowledge about a case and the treatment possibilities for the medical conditions involved.” Tex. Health & Safety Code §170A.001(4). Notably, there is no mechanism to punish the abortion seeker.
Under the trigger law, the Texas attorney general has the ability to pursue civil penalties. Additionally, licensing authorities “shall revoke the license, permit, registration, certificate, or other authority of a physician or other health care professional who performs, induces, or attempts an abortion” in violation of the trigger law. Tex. Health & Safety Code §170A.007. Texas prosecutors may pursue criminal charges under the trigger law.
The federal government has taken the position that abortion must be available if it is necessary to stabilize an “emergency medical condition” as defined by the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which may include ectopic pregnancy, complications of pregnancy loss or emergent hypertensive disorders such as preeclampsia with severe features. According to guidance from the Department of Health and Human Services (HHS) to frontline healthcare providers, to the extent a state law mandates a more-restrictive definition of an emergency medical condition, it is preempted. On July 14, in federal district court in Lubbock, Texas, the Texas attorney general sued HHS regarding its use of EMTALA to require hospitals to perform abortions. In this lawsuit, the Texas attorney general is seeking a declaratory judgment.
Ambiguity also remains regarding the pre-Roe abortion statutes. Tex. Rev. Civ. Stat. art. 4512.1, et seq. After a Harris County district court granted a limited temporary restraining order regarding the pre-Roe statutes, the Texas attorney general filed an emergency motion with the Texas Supreme Court. In re Ken Paxton, et al., No. 22-0527. Importantly, the Texas Supreme Court sought briefing on whether the civil district court has jurisdiction to enjoin the enforcement of a criminal statute, because civil courts have this authority only in limited circumstances.
Amicus letter briefs have been filed by members of the Texas Legislature and advocacy organizations supporting Paxton’s argument that the pre-Roe statutes have not been repealed. The solicitor general’s reply in this Texas Supreme Court case suggests that the pre-Roe statutes may not automatically apply in Dallas County (“The Dallas County District Attorney might need to move for relief from the judgment in Roe v. Wade, but Relators and other prosecutors do not.”).
Pro-life advocates are seeking pre-suit depositions in at least four Texas counties: Denton, Howard, Jack and Smith. These depositions are sought based on Tex. Health & Safety Code §171.08, which permits civil liability for aiding or abetting the performance or inducement of an abortion. A hearing is set for Aug. 5 in Jack County on the request to depose a representative of an abortion support fund. On Aug. 9, a Denton County court will hear the request to depose a representative of another abortion support fund.