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The State of Texas, The State of Abortion

Loren Jacobson

Associate Professor of Law at UNT Dallas College of Law

ISSUE 14

FALL 2023

CIVIL RIGHTS

In June 2022, the Supreme Court overturned Roe v. Wade,¹ the case that recognized a constitutional right to abortion.² This made it possible for states to constitutionally impose limits on abortion, including by banning the procedure. In Texas, there is now a patchwork of laws that prohibit abortion with some exceptions. This article explains the current state of abortion laws in Texas and how they affect the ability to get an abortion in Texas, as well as outside of the state. Specifically, it will examine whether and to what extent an abortion can be provided in Texas, whether a person can self-manage an abortion in Texas without being concerned about legal repercussions, whether a person can travel outside of Texas to obtain an abortion in a state where it is legal, and whether a person in Texas can help another person obtain an abortion in a place where it is legal.

 

Is providing an abortion illegal in Texas?

 

It is illegal to perform an abortion in Texas, with a few limited exceptions. H.B. 1280, which went into effect on August 25, 2022, prohibits a person from “knowingly perform[ing], induc[ing], or attempt[ing] an abortion.”³ The provision makes the performing of an abortion a crime punishable as either a second or first degree felony (for example, as manslaughter or even murder, if the unborn child dies). It also allows the imposition of a $100,000 civil fine per abortion. The statute defines abortion to mean using any means to cause the death of an “unborn child” and defines “unborn child” to mean “a living homo sapiens from fertilization to birth.” This means that no health care provider or any other person can give another person an abortion without facing severe criminal consequences and fines.

 

The only exceptions to this general rule are where a licensed physician determines that the person on whom the abortion is performed has a “life threatening physical condition aggravated by, caused by, or arising from the pregnancy” that places the pregnant person “at risk of death or poses a serious risk of substantial impairment of a major bodily function.” And even in those cases, the physician must do everything possible to save the life of the fetus unless it will put the pregnant person at greater risk of death or seriously risk the substantial impairment of the pregnant person’s major bodily functions. Texas law also does not consider removing an ectopic pregnancy or a “dead, unborn child whose death was caused by spontaneous abortion” an abortion,¹⁰ thus a physician can provide an abortion in these circumstances without fear of criminal prosecution or fines. However, there are no exceptions that would allow providing an abortion in the cases of rape or incest, and the law specifically prohibits an abortion where the risk of injury or death comes from the pregnant person herself—for example, where the pregnant person is threatening suicide.¹¹ 

 

In addition to H.B. 1280, which allows the State of Texas to criminally prosecute and fine health care providers that provide abortions, another law known as S.B. 8 also allows private individuals to sue physicians who “knowingly perform or induce an abortion on a pregnant woman” if the physician detects a fetal heartbeat, which includes fetal cardiac activity.¹² The statute requires a physician to perform a test to detect fetal cardiac activity, so the physician cannot claim ignorance.¹³ The law has an exception that does not allow the physician to be sued if the physician believes and can document that she provided the abortion because a “medical emergency” necessitated the abortion,¹⁴ but there are no exceptions for rape, sexual assault, incest, fetal abnormalities, or anything else. The law allows any person to bring a lawsuit, and if the lawsuit is successful, it can lead to the imposition of fines on the physician of not less than $10,000 per abortion, and the physician has to pay the attorneys’ fees of the person who brought the lawsuit.¹⁵ Notably, the person bringing suit does not have to have any relationship to the physician or the person on whom the abortion is performed; any member of the public can bring suit.¹⁶ However, a person who impregnated the pregnant patient through an act of rape, sexual assault, incest or any other act prohibited by the Texas Penal Code may not bring suit pursuant to S.B. 8.¹⁷

 

It does not appear that many lawsuits have been brought pursuant to S.B. 8, likely because performing abortions has since been criminalized in Texas and so physicians are not providing them. One lawsuit that was brought prior to enactment of H.B. 1280 was dismissed by the court because it found that a person who does not have any connection to the abortion does not have standing bring such a suit.¹⁸ Another Texas trial court has held S.B. 8 unconstitutional under both the Texas and U.S. Constitutions because it violates the standing principle, but also because it unconstitutionally delegates state law enforcement authority to private individuals, and violates the due process principles of the Fourteenth Amendment.¹⁹ More recently, a third trial court has also found S.B. 8 to be unconstitutional because of the Texas Constitution’s standing requirement, but as of the time of publication of this article, that finding has been suspended pending appeal.²⁰ Thus, it currently appears that a person with some connection to the abortion could bring a civil suit against a physician for providing an abortion, but at this point, S.B. 8 will rarely, if ever, be used to sue a physician who provides an abortion, since physicians are not generally providing abortions given Texas’s criminal prohibition.

 

Are there legal repercussions for a person obtaining or self-managing a medication abortion in Texas?


For the time being, it seems unlikely that a person who self-manages an abortion in Texas would have exposure to legal repercussions. First, the drugs that are taken to induce a medication abortion, mifepristone and misoprostol, have long been approved by the FDA and thus can be sold legally in the United States. There is a lawsuit that is currently pending that challenges the FDA’s approval of one of the medications, mifepristone, but the Supreme Court has allowed the drug to remain on the market pursuant to the FDA’s regulations until the Supreme Court has decided the case.²¹ Both drugs can only be obtained with a prescription.²² Because of H.B. 1280, Texas physicians cannot prescribe the drugs.²³ However, they may be available through telemedicine or other providers online.²⁴ 

 

If a person in Texas self-manages an abortion by use of these medications, that person cannot be criminally prosecuted.²⁵ H.B. 1280 makes clear that the imposition of civil or criminal penalties cannot be imposed on a pregnant person “on whom an abortion is performed, induced, or attempted.”²⁶ This language seems to leave open the possibility that a pregnant person who induces or attempts her own abortion may be subject to the statute and its punishments. However, there is a specific provision of Texas’s criminal code that prohibits the prosecution of a person who self-induces abortion. That provision states that the death of an unborn child that occurs due to “conduct committed by the mother of the unborn child” is not considered homicide.²⁷ This provision thus explicitly excepts a person who induces her own abortion from being prosecuted under Texas’s felony homicide statutes, which is the punishment imposed by H.B. 1280.²⁸  

 

In addition, it is highly unlikely that S.B. 8 could be used against a person who self-manages an abortion. First, S.B. 8 only allows suits against “physicians” who knowingly perform or induce an abortion after a fetal heartbeat has been detected and those who engage in conduct that “aids or abets” the performance or inducement of an abortion.²⁹ A pregnant person who induces an abortion herself is not a physician and also is not “aiding or abetting” the inducement of an abortion; she is inducing the abortion herself. Moreover, S.B. 8 specifically provides that a person cannot be sued pursuant to S.B. 8 if she is the one receiving the abortion.³⁰

 

Texas did have one other set of statutes that criminalized abortion, including by the pregnant person. These statutes existed prior to Roe v. Wade. One of those statutes, Article 1191, authorized two to ten years in prison for anyone who knowingly procured an abortion, meaning that the pregnant person who got the abortion could be prosecuted under the statute.³¹ However, after Roe v. Wade, the Texas Legislature removed this provision (and another that I will discuss below) from the Penal Code.³² The law has been absent from Texas’s criminal and civil statutes since 1974.³³ Based on this, in 2004 the federal appeals court that oversees federal cases from Texas held that this provision and the others that existed prior to Roe had “at least been repealed by implication.”³⁴ A recent federal trial court has affirmed this ruling, also finding that the criminal abortion provisions that existed prior to Roe v. Wade, including Article 1191, have been repealed and thus are no longer good law.³⁵ Thus, it is highly unlikely that a person who self-manages her own abortion would be prosecuted under this now repealed provision.

 

Can a pregnant person leave the state to get an abortion in a state where abortion is legal?

 

Yes, a person can leave the state to have an abortion in another state where abortion is legal. First, under both H.B. 1280 and S.B. 8, a woman seeking abortion cannot be prosecuted or sued. Moreover, a court recently held that H.B. 1280 is “unambiguous—it does not penalize out-of-state abortions.”³⁶ 

 

Nevertheless, very recently, some counties and cities in Texas have been making it illegal to use county roads to travel to get an abortion.³⁷ The largest of these is Lubbock County. The ban there does not apply to cities within the county, including the city of Lubbock, and only outlaws the transportation of people for abortions in the unincorporated parts of the county. It is only enforceable by private lawsuit, meaning a private individual would have to know that someone was transporting an individual on a road in the unincorporated part of the county to get an abortion out of state—something that is highly unlikely.³⁸ The Lubbock provision, like the others, also does not allow the person seeking an abortion to be sued.³⁹ Thus, a person who is pregnant who herself is traveling out of the state to get an abortion cannot be sued.

 

Again, these provisions allow only private individuals to bring civil lawsuits to sue people who transport others over county roads to get an abortion. This is because the state cannot prohibit an individual from travelling out of state.⁴⁰ The Supreme Court has recognized that there is a constitutional right to travel, meaning it is difficult for states to impose restrictions on this right.⁴¹ Due to this right, one of the justices who overruled Roe v. Wade has made clear that a state cannot prevent a person from traveling out of state for an abortion. Justice Kavanaugh wrote in a concurring opinion in the Dobbs case: “may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”⁴² So far, Texas has not passed any laws that would restrict an individual from leaving the state to get an abortion in a state where it is legal.

 

Can a person in Texas help a friend get an abortion in a state where abortion is legal?

 

Yes, a person can help a friend get an abortion in a state where abortion is legal, but there may be some remote risks. First, H.B. 1280 does not prohibit a person from helping another person obtain an abortion in a state where it is legal. H.B. 1280 only criminalizes and allows civil penalties against a person who knowingly performs, induces, or attempts an abortion.⁴³ There is no aiding and abetting provision in the statute and thus it would not apply to a person living in Texas who helps a pregnant person get an abortion outside of Texas. A recent court decision confirms this, holding that H.B. 1280 does not authorize civil or criminal prosecution for facilitating out-of-state abortions.⁴⁴

 

One of Texas’s pre-Roe abortion provisions did criminalize assisting an abortion. Article 1192 provided that “whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.”⁴⁵ This language could be interpreted to mean that anyone who helped another person get an abortion, even outside of the state, could be criminally prosecuted as an accomplice. However, as described above, the highest federal appellate court in Texas and a federal trial court judge have held that this early statute has been repealed by subsequent Texas laws and therefore a person cannot be prosecuted under this provision.⁴⁶

 

As for S.B. 8, it makes clear that while a person who “aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise,” can be sued, this is only so if the abortion is performed or induced in violation of Texas law.⁴⁷ Thus, someone who helps a pregnant person get an abortion outside of the state cannot be sued under S.B. 8. The provision also makes clear that S.B. 8 cannot be imposed to restrict speech or conduct protected by the First Amendment.⁴⁸ Thus, a person cannot be sued for providing information relevant to procuring an abortion outside of the state or for providing funding for an abortion outside of the state.

 

One lawsuit has been brought in a Texas state court to try to punish individuals who helped a friend get an abortion. In that case, a man has sued the friends of his ex-wife for helping her procure drugs to induce a medical abortion when abortion was still legal in Texas.⁴⁹ He sued them pursuant to Texas’s civil wrongful death statute and is asking for damages.⁵⁰ Texas’s wrongful death statute provides that “a person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s . . . wrongful act.”⁵¹ The wrongful death statute does define an “individual” to include an “unborn child.”⁵² However, in order for there to be liability, the individuals who are being sued must engage in a “wrongful act,” and it seems unlikely that they were under Texas law.

 

The wrongful death statute itself makes clear that the provision does not apply to a claim for the death of an unborn child that is brought against the mother of the child.⁵³ Thus, a woman who gets an abortion cannot be sued for wrongful death. In addition, at the time the woman in the case induced her abortion, it was legal, as it would be if a person obtained an abortion in a state where abortion is legal.⁵⁴ Thus, if the procurement of the abortion is legal in the state where it is obtained, the person who got the abortion cannot be sued for wrongful death, and as explained above, none of Texas’s other statutes prohibit a person from helping another person get an abortion in a state where it is legal, then it seems unlikely that a person who helps a friend get a legal abortion is committing a “wrongful act,” as required by the statute.

 

This one case shows that it is possible that a person who helps a friend get an abortion in another state could be sued under Texas’s civil wrongful death statute, but it is highly unlikely since such conduct is not “wrongful.” It is also highly unlikely because the only individuals who can bring suit for “wrongful death” are the parents of the deceased, and thus such a lawsuit could only be brought by the father of the aborted fetus who knows or finds out that the mother’s friends helped her get an abortion that he would not have approved of—a highly unusual scenario.

 

Conclusion

 

The landscape of statutes that regulate abortion in Texas is complex and seems to be ever-changing, with new cases and theories being tested in courts. At the time of publication of this article, it is clear that providing an abortion is illegal in Texas unless it is performed to save the life or bodily function of a pregnant person with a life-threatening medical condition, to remove an ectopic pregnancy, or to remove a fetus that has already spontaneously died in the womb. However, it is unlikely that a person who self-manages her own abortion in Texas would face legal consequences and individuals can travel out of the state to get abortions in states where it is legal. It also seems that a person can help another person to get a legal abortion out of the state by providing information, funds, or by driving them, although there are some remote risks to doing so.

 

Suggested Citation: Loren Jacobson, The State of Texas, The State of Abortion, ACCESSIBLE LAW, Fall 2023, at 1.


The State of Texas, The State of Abortion
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Sources:

[1] 410 U.S. 113 (1973).

[2] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[3] Human Life Protection Act of 2021, 87th Leg., R.S., ch. 800 (H.B. 1280), § 170A.002(b)(3), 2021 Tex. Sess. Law Serv. (codified at Tex. Health & Safety Code § 170A.002(a)).

[4] See, e.g., Tex. Penal Code §§ 19.02 (murder) & 19.04 (manslaughter) (2003).

[5] Tex. Health & Safety Code §§ 170A.004 & 170A.005. Texas law authorizes up to 99 years in prison for first degree felonies. Tex. Penal Code § 12.32.

[6] Tex. Health & Safety Code § 170A.005. 

[7] Id. at § 170A.001.

[8] Id. at § 170A.002(b). A recent lawsuit challenged this provision as being vague and violating the Texas Constitution. After a trial, the trial court entered a temporary injunction, requiring Texas to allow physicians to also provide abortions when the pregnant person has “a physical emergent medical condition” meaning “a physical medical condition or complication of pregnancy that poses a risk of infection, or otherwise makes continuing a pregnancy unsafe for the pregnant person; a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention; and/or a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.” Temporary Injunction Order, Zurawski v. Texas, Cause No. D-1-23-00968 (353rd Dist. Ct., Travis County, Tex. Aug. 4, 2023). However, the State of Texas has appealed the ruling, and pursuant to Texas law, pending appeal the injunction is currently suspended.

[10] Tex. Health & Safety Code § 245.002(1) (2017). The statute defines an “ectopic pregnancy” to mean “the implantation of a fertilized egg or embryo outside of the uterus.” Id. at § 245.002 (4-a).

[11] Id. at § 170A.002(c).

[12] Tex. Health & Safety Code § 171.204 (2021). Fetal cardiac activity usually becomes detectable at about six weeks.

[13] Id. at § 171.203.

[14] Id. at § 171.205.

[15] Id. at § 171.208(b)(2) & (3).

[16] Id. at § 171.208(a) (providing “any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action”).

[17] Id. at § 171.208(j).

[18] Gomez. v. Braid, No. 2022CI8302 (224th Dist. Ct. Bexar Cty., Tex. Dec. 8, 2022); see also Eleanor Klibanoff, Texas state court throws out lawsuit against doctor who violated abortion law, The Texas Tribune, Dec. 8, 2022, https://www.texastribune.org/2022/12/08/texas-abortion-provider-lawsuit/. The Texas Supreme Court has read the Texas Constitution to require a person to have “standing,” meaning the person has to be able to show injury or harm to herself, in order to bring a lawsuit. See Tex. Ass’n of Business v. Tex. Air Control Bd., 852 S.W. 440, 444-46 (Tex. 1993).

[19] Van Stean v. Tex. Right to Life, No. D-1-GN-21-004179, at 2 (98th Dist. Ct., Travis County, Tex. Dec. 9, 2021). The relief the court provided was to grant a declaratory judgment that applied only to the particular parties in the case, and the case is currently on appeal. Tex. Right to Life v. Van Stean, No. 03-21-00650-CV, 2023 WL 3687408 (Tex. App.—Austin May 26, 2023, pet. filed).

[20] See Temporary Injunction Order, Zurawski v. Texas, Cause No. D-1-23-00968 (353rd Dist. Ct., Travis County, Tex. Aug. 4, 2023), and supra note 8.

[21] Danco Labs v. Alliance for Hippocratic Medicine, 143 S. Ct. 1075 (2023).

[22] FDA, Information about Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation (last updated Mar. 23, 2023).

[23] See Tex. Health & Safety Code § 170A.002 (a); see also Fund Tex. Choice v. Paxton, No. 1:22-CV-859-RP, 2023 WL 2558143, at *2 (W.D. Tex. Feb. 24, 2023) (quoting Tex. Health & Safety Code § 245.002(1)) (“H.B. 1280 incorporates the definition of abortion from the Texas Abortion Facility Reporting and Licensing Act, which defines abortion as ‘the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant.’”).

[24] Note that the FDA does not recommend that the drugs be purchased online. See FDA, Information about Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation (last updated Mar. 23, 2023).

[25] Tex. Health & Safety Code § 170A.003.

[26] Id. 

[27] Tex. Penal Code §19.06(1).

[28] Tex. Health & Safety Code §§ 170A.004 & 170A.005.

[29] Id. at §§ 171.204(a) & 171.208(a)(2).

[30] Id. at § 171.206(b)(1).

[31] Tex. Rev. Civ. Stat. Ann. art. 4512.1 (formerly Tex. Penal Code art. 1191 (1925)).

[32] See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 889 (S.B. 34) (eff. Jan. 1, 1974).

[33] See 1973 Tex. Gen. Laws 995 (codified at Tex. Rev. Civ. Stat. art. 4512.1-4512.4, 4512.6 (1974)).

[34] McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004).

[35] Fund Tex. Choice v. Paxton, No. 1:22-CV-859-RP, 2023 WL 2558143, at *25 (W.D. Tex. Feb. 24, 2023).

[36] Id. at *15.

[37] Jayme Lozano Carver, Lubbock County becomes latest to approve “abortion travel ban” while Amarillo City Council balks, The Texas Tribune (Oct. 24, 2023), https://www.texastribune.org/2023/10/23/abortion-travel-ban-lubbock-county/.

[38] Marin Wolf, Lubbock becomes largest Texas county to outlaw abortion-related travel, Dallas Morning News (Oct. 23, 2023), https://www.dallasnews.com/news/public-health/2023/10/23/lubbock-becomes-largest-texas-county-to-outlaw-abortion-related-travel/.

[39] See Carver, supra note 37.

[40] Saenz v. Roe, 526 U.S. 489, 500 (1999).

[41] Id.

[42] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2309 (2022) (Kavanaugh, J., concurring).

[43] Tex. Health & Safety Code § 170A.002(a).

[44] Fund Tex. Choice v. Paxton, No. 1:22-CV-859-RP, 2023 WL 2558143, at *14 (W.D. Tex. Feb. 24, 2023).

[45] See 1973 Tex. Gen. Laws 995 (codified at Tex. Rev. Civ. Stat. art. 4512.2 (1974)).

[46] See Fund Tex. Choice, 2023 WL 2558143, at *14.

[47] Tex. Health & Safety Code § 171.208(a).

[48] Id. at § 171.208(g).

[49] Plaintiff's Original Petition at 1, Silva v. Noyola, No. 23-CV-0375 (Tex. 56th Dist. Ct. Galveston Sty., filed Mar. 9, 2023).

[50] Id.

[51] Tex. Civ. Prac. & Rem. Code § 71.002(b).

[52] Id. at § 71.001(4).

[53] Id. at § 71.003(c)(1).

[54] Plaintiff’s Original Petition, supra note 49.

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