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3763 views   |   6   |   Last updated on Aug 26, 2022    Criminal Law Abortion

Yes, the Texas Legislature enacted two major pieces of abortion legislation in 2021. One of these, House Bill 1280, is what many refer to as an abortion "trigger law." According to the Texas Attorney General's advisory letter, it became effective on August 25th, 2022.

It is called a trigger law because its provisions only take effect if certain events occur. Section 3 of the bill states that its provisions take effect only if the U.S. Supreme Court issues a judgment allowing states to prohibit abortions.

On June 24th, 2022, the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade and Planned Parenthood v. Casey, allowing individual states to prohibit abortion. A judgment followed on July 26th, effectively starting the 30-day period for the "trigger" provision.

The other major piece of abortion legislation from 2021 is Senate Bill 8. Learn more about SB 8.

"Trigger" Effect

House Bill 1280 created Chapter 170A of the Texas Health & Safety Code. According to Section 3 of the bill, Chapter 170A would take effect 30 days after federal law allows individual states to prohibit abortions. Section 3 lists the following possibilities as triggers:

  • The U.S. Supreme Court issues a judgment that overrules Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), and allows individual states to prohibit abortions.
  • The U.S. Supreme Court issues any other judgment that recognizes a state's authority to prohibit abortions.
  • An amendment to the U.S. Constitution that allows individual states to prohibit abortion is adopted.

The triggering event occurred in the summer of 2022. On June 24th, 2022, the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade and Planned Parenthood v. Casey. A judgment was issued in the case on July 26th. This delay is because court rules set out a short period during which either party can request a rehearing in the case. Once this time expires, an official judgment can be issued.

Abortions Are Prohibited, With Certain Exceptions

Chapter 170A of the Texas Health & Safety Code prohibits abortions outright, except in certain circumstances. It also creates both criminal and civil penalties for performing prohibited abortions.

Section 170A.002 prohibits a person from performing, inducing, or attempting an abortion. There are exceptions for situations in which the life or health of the pregnant patient is at risk. These exceptions are in subsection (b) of Section 170A.002. Three factors are listed:

  • 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. "Substantial impairment of a major bodily function" is not defined in this chapter.
  • The physician must try to save the life of the fetus unless this would increase the risk of the pregnant patient's death or impairment. 

These exceptions do not apply in certain cases. One example is where the pregnant patient's risk of death or impairment arises from a risk of suicide or self-harm, according to subsection (c) of Section 170A.002.

This chapter does not apply in situations where a fetus accidentally dies or is injured due to medical treatment. This statement is found in subsection (d) of Section 170A.002.

Criminal and Civil Penalties Would Apply

Chapter 170A includes criminal, civil, and professional consequences for anyone who provides a prohibited abortion. The penalties do not apply to a patient who receives an abortion, according to Section 170A.003. This chapter does not address situations in which a patient seeks an abortion in another state.

  • Section 170A.004 makes performing an abortion a criminal offense. Violators could be charged with a first or second-degree felony, depending on whether the abortion resulted in the death of the fetus.
  • Each violation of this chapter is also subject to a civil penalty of at least $100,000 under Section 170A.005. This penalty is in addition to any other civil liabilities a person may face. For example, Senate Bill 8 also allows civil suits related to prohibited abortions. 
  • A physician or health care professional in violation would also have their medical license or permit revoked under Section 170A.007.

Criminal Laws Before Roe v. Wade

Laws prohibiting abortion in some form have been on the books in Texas as early as 1854. They are currently found in the Revised Civil Statutes, Sections 4512.1 through 4512.6.

When Roe v. Wade was decided in 1973, the Supreme Court declared Texas criminal statutes related to abortion to be unconstitutional. Section 4 of HB 1280 says these statutes were never repealed by the Texas Legislature. It is unclear how these specific statutes will be enforced. It will likely be an issue decided by the courts.

For more information on finding Texas abortion laws, please see our FAQ, Where can I find Texas laws on abortion?

Abortion Laws Guide & Related FAQs

The library has a guide to Texas and federal abortion laws with more extensive information about this topic. We also have several FAQs on various aspects of Texas abortion laws:

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