Court Allows Abortions up to Six Weeks to Resume in Texas

Texas Supreme Court | Image by Texas Tax Law

A Texas state court blocked anti-abortion state laws from the 1920s from being enforced following the U.S. Supreme Court’s decision to overturn Roe v. Wade last week. The ruling will temporarily allow abortions to continue being performed in the state.

After the Supreme Court opinion overturned the precedent that made abortion a constitutional right, Texas Attorney General Ken Paxton promptly issued an advisory notice to prosecutors saying that abortion was made immediately illegal under Texas laws that predate Roe v. Wade by decades.

Paxton cited five laws from the mid-1920s that criminalize anyone who knowingly receives or provides an abortion. They also criminalize anyone who attempts but fails to obtain an abortion. Additionally, if someone dies while getting an abortion, the abortion provider could face murder charges.

The attorney general noted that Texas already has a “trigger law” in place that will make performing an abortion at any point in pregnancy a felony. The trigger law does not go into effect until 30 days after the Supreme Court makes an official judgment in the case, which could still be another month or longer.

In the meantime, Paxton said his office will assist prosecutors who pursue criminal charges “based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” Paxton added. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”

After Paxton’s advisory on Friday, abortion clinics ceased their services in the state.

On Monday, pro-abortion advocates, providers, and civil rights groups filed a lawsuit seeking a ban on enforcing the 1920s Texas laws.

The lawsuit argued that the pre-Roe abortion ban “was expressly declared unconstitutional in Roe and has been absent from Texas’s civil statutes for decades.” Additionally, it notes that the Texas Legislature website says the 1920s laws were “held to have been impliedly repealed” in a 2004 case.

Harris County District Judge Christine Weems agreed with the pro-abortion side, issuing a temporary restraining order on Tuesday prohibiting the enforcement of the 1920s laws.

Judge Weems will decide on a permanent injunction in a hearing set for July 12. The temporary order will allow only the Texas abortion clinics named in the lawsuit to continue to operate until Texas’ trigger law goes into effect.

The clinics named in the lawsuit are: Whole Woman’s Health in McAllen, McKinney, Fort Worth, and Austin; Alamo Women’s Reproductive Services in San Antonio; Brookside Women’s Medical Center and Austin Women’s Health Center in Austin; Houston Women’s Clinic and Houston Women’s Reproductive Services in Houston; and Southwestern Women’s Surgery Center in Dallas.

Whole Woman’s Health said it would resume providing abortions immediately due to this ruling.

“We immediately began calling the patients on our waiting lists and bringing our staff and providers back into the clinics,” said Amy Hagstrom Miller, Whole Woman’s Health president and CEO.

The clinics must still comply with the state law banning abortions after six weeks of pregnancy.

Marc Hearron, senior counsel at the Center for Reproductive Rights, called the court ruling a “relief.”

“It is a relief that this Texas state court acted so quickly to block this deeply harmful abortion ban,” said Hearron. “This decision will allow abortion services to resume at many clinics across the state, connecting Texans to the essential health care they need. Every hour that abortion is accessible in Texas is a victory.”

Paul Linton, an attorney for the anti-abortion group Texas Alliance for Life, believes a higher court will soon overturn the temporary restraining order and that the pre-Roe abortion laws will stand.

“I don’t think it has any merit,” Linton said. “I don’t think there’s any plausible argument that the laws have been expressly repealed, and the repeal-by-implication argument, I think, is very weak.”

John Seago, president of Texas Right to Life, echoed Linton’s position.

“The abortion industry has nothing to lose, so they’re going to try to challenge every law for the next 60 days,” said Seago. “We do believe that the pre-Roe statute is valid and that the arguments they’re making to the court won’t stand.”

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