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4419 views   |   6   |   Last updated on Nov 09, 2023    Criminal Law Abortion

In 2021, the Texas Legislature passed a bill outlawing abortion that would only become law once a certain event happened, like the overturning of Roe v. Wade. This is often referred to as Texas’s "trigger law." The judgment in Dobbs v. Jackson Women’s Health Organization in July of 2022 triggered the Texas law to go into effect thirty days later.

House Bill 1280 and its "trigger"

House Bill 1280 created Chapter 170A of the Texas Health & Safety Code. According to Section 3 of the bill, Chapter 170A would go into effect 30 days after federal law allowed 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 events occurred in the summer of 2022:  

  • June 24th, 2022: the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization. This decision overturned Roe v. Wade and Planned Parenthood v. Casey.
  • July 26th, 2022: A judgment was issued in the case The slight delay is because court rules allow a short period of time when either party can request a rehearing. Once this time expires, the Court can issue an official judgment.
  • August 25th, 2022: According to an advisory letter from the Texas Attorney General, Chapter 170A went into effect.

Abortions are banned, with certain exceptions

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

Section 170A.002 prohibits a person from performing, inducing, or attempting an abortion. There is an exception for situations in which the life or health of the pregnant patient is at risk. In order 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. "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. 

There are additional situations where the exception for the life or health of the patient does not apply. Please read the entirety of Section 170A.002 for more details.

Criminal & civil penalties for performing abortions

Chapter 170A includes various 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.

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