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17033 views   |   20   |   Last updated on Aug 26, 2022    Criminal Law Abortion

Texas enacted a "trigger" law that prohibits almost all abortions and sets out penalties for abortion providers who violate the law. The law went into effect on August 25th, 2022. 

Abortions Prohibited, With Certain Exceptions

Abortion is banned under Chapter 170A of the Texas Health & Safety Code except in certain narrow circumstances. Chapter 170A also lists both criminal, civil, and professional 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

Chapter 170A includes criminal, civil, and professional consequences for anyone who provides a prohibited abortion. These penalties apply to a person who provides an abortion. They do not apply to a patient who receives an abortion, according to Section 170A.003.

The following penalties are listed in Chapter 170A:

  1. 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.
  2. Each violation of this chapter is also subject to a civil penalty of at least $100,000, plus attorney's fees and court costs 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.
  3. A physician or health care professional in violation would also have their license or permit revoked under Section 170A.007.

"Trigger" Provisions

Chapter 170A was enacted by House Bill 1280 in 2021. It is often referred to as Texas's "trigger" law. According to Section 3 of HB 1280, Chapter 170A would go into effect 30 days after the U.S. Supreme Court issues a final judgment overruling Roe v. Wade410 U.S. 113 (1973) and Planned Parenthood v. Casey505 U.S. 833 (1992).

On June 24th, 2022, the U.S. Supreme Court issued an opinion in Dobbs v. Jackson Women's Health Organization that allowed individual states to prohibit abortion. A final judgment in the case followed on July 26th, starting the 30-day period for the "trigger" provision in Texas law.

Texas Attorney General Ken Paxton released two advisory letters with guidance on Texas law in light of Roe v. Wade's reversal in the Dobbs decision. The second advisory letter sets the effective date for Chapter 170A as August 25th, 2022.

History of the Legal Status of Abortion in Texas

Texas has had laws prohibiting abortion as early as 1854. However, in 1973 the U.S. Supreme Court issued a decision in Roe v. Wade, 410 U.S. 113 (1973), stating that Texas’s criminal abortion laws were unconstitutional. The decision acknowledged a patient’s right to choose whether to have an abortion. This decision was upheld in the 1992 U.S. Supreme Court case Planned Parenthood v. Casey, 505 U.S. 833 (1992).

In the years after Roe v. Wade was decided, the Texas Legislature passed many laws that restricted abortion in different ways. Please see our FAQ for more details about Texas laws on abortion before and after the Roe v. Wade decision.

It is unclear whether the criminal abortion laws in place before the Roe v. Wade decision are still enforceable after the ruling in Dobbs v. Jackson. Section 4 of HB 1280 says these statutes were never repealed by the Texas legislature. The Texas Attorney General's advisory letter indicates these laws are currently enforceable. There is currently litigation in the state courts regarding the enforceability of these laws.

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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