Let's take a look at Texas abortion laws

Monday marked the 51st anniversary of Roe v. Wade, where the Supreme Court of the United States (SCOTUS) issued its opinion that found inherent in the Due Process Clause of the 14th Amendment is a “right to privacy” that encompasses a pregnant woman's right to have an abortion.

Ever since, the fight over rights to life or choice has sparked battles across the political landscape, culminating in an overturning of the historic decision in another SCOTUS opinion that reversed Roe, thus returning the authority to regulate abortion back to the states.

In a 7 to 2 decision on January 23, 1973, SCOTUS issued its opinion, delivered by Justice Harry Blackmun, who noted in the opening paragraphs that “one’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.”

The case began in Texas after a pseudonymous “Jane Roe” pursued federal action against Dallas County District Attorney Henry Wade. Later revealed as Norma McCorvey, “Roe” sought an abortion in 1969 but Texas law prevented her from obtaining one. McCorvey and her lawyers first sought a decision from a lower court, and a three-judge panel of the U.S. District Court for the Northern District of Texas struck down the state’s abortion ban, finding it unconstitutional — but declined to immediately block its enforcement.

The SCOTUS opinion determined that Texas’ abortion law “sweeps too broadly,” with Blackmun’s leading opinion stating that “the statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure.”

The opinion stated that the “right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

The SCOTUS opinion faced subsequent judicial developments and challenges, most notably in a 5 to 4 SCOTUS decision in Planned Parenthood v. Casey in 1992. The justices reaffirmed the central holding of the Roe decision but justified their decision on a broader understanding of individual freedom: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

“Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause,” the opinion asserts.

In 2018, Mississippi passed the Gestational Age Act that prohibited abortions after 15 weeks, which brought the issue of abortion back to the Supreme Court.

Jackson Women’s Health Organization sued Thomas Dobbs, the state’s health officer, and requested an emergency temporary restraining order to the new law. Both a district court and the 5th Circuit Court of Appeals first sided with Jackson Women’s Health Organization before Mississippi appealed it to SCOTUS.

Prior to the final decision, a leaked draft opinion signaled the overturning of Roe and Casey.

The Dobbs v. Jackson decision was issued in 2022 and overturned both Roe and Casey. The Supreme Court returned the authority to regulate abortion to the states, stating in Justice Samuel Alito’s majority opinion, “The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

Alito continued, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”

Texas had already prepared for that outcome.

An unrepealed abortion ban formerly codified in state penal code — the point of contention for Roe v. Wade in the first place — made exceptions for procedures meant to save the mother’s life, and did not criminalize treatment for ectopic pregnancies or the evacuation of a stillborn or miscarried fetus. Only abortion procedures that end the life of the unborn child could be punished.

Texas also passed the Human Life Protection Act in 2021, which made it a crime to knowingly perform, induce, or attempt an elective abortion. However, similar to the pre-Roe statutes, the law does allow an exception for abortions meant to save the mother from “substantial impairment of a major bodily function,” including ectopic pregnancies. This “trigger ban” went into effect 30 days after the SCOTUS decision.

That same year Texas also passed Senate Bill 8, known as the Texas Heatbeat Act, which bans abortions after a detectable pulse. Senate Bill (SB) 8 creates a mechanism for private civil action, allowing private citizens to file lawsuits against those who perform or aid abortions rather than using government action for enforcement.

Neither of those laws creates a criminal cause of action against the mother herself for receiving an abortion.

The issue made it to the state Supreme Court last year when Texas woman Kate Cox, seeking an “urgent abortion” due to complications from her pregnancy, left the state after failing to challenge its pro-life laws. Cox v. State of Texas dominated political, legal, and public debate in December 2023, which eventually landed with the Supreme Court blocking a lower court ruling that would have allowed Cox to receive an abortion.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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