7.2.22 – Dallas Morning News

"Texas Supreme Court allows enforcement of 1925 abortion ban scrapped in Roe v. Wade"
Order, reversing a Houston judge, will again halt abortion through six weeks in Texas after brief reprieve from Dobbs ruling.

By Todd J. Gillman

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WASHINGTON – The Texas Supreme Court ordered late Friday that the state’s century-old abortion ban, struck down in Roe v. Wade in 1973, can be enforced immediately.

That overrules a Harris County judge who had allowed abortion through six weeks to resume temporarily, and puts abortion providers and at risk of fines and lawsuits.

The state’s high court issued the order a week after the U.S. Supreme Court overturned Roe and erased constitutional protection for abortion.

It’s a major setback for abortion providers left with few options after the ruling in Dobbs vs. Jackson Women’s Health…

Texas is one of 13 states with a “trigger law” to ban abortion once Roe was scrapped. That law will take effect 30 days after the Supreme Court’s ruling in Dobbs is final, which could be another six or seven weeks.

But the Legislature never formally repealed the law struck down in Roe and Texas attorney general Ken Paxton has pressed to dust off the 1925 statute immediately – a law that abortion rights advocates called “antiquated.”

…“Performing elective abortions has been a crime in Texas since (at least) 1854,” Paxton’s office argued before the state’s high court. “It was a crime in 1973, when the United States Supreme Court erroneously found a right to elective abortion somewhere in the penumbras of the Constitution…

That, the state argued, means that allowing enforcement simply restores a legal status quo that was interrupted by Roe, albeit for 49 years.

Paxton wants prosecutors in Texas to be able to press criminal charges under the 1925 law.

He called the order a “pro-life victory” that “slapped down the abortion providers and the district court carrying their water. Our state’s pre-Roe statutes banning abortion in Texas are 100% good law. Litigation continues, but I’ll keep winning for Texas’s unborn babies.”

The Texas Supreme Court’s order keeps in place an injunction against district attorneys, averting any criminal enforcement of the ban. But it opens providers to civil penalties, including fines and loss of medical licenses.

The court gave the attorney general’s office and those supporting abortion rights until Tuesday afternoon to file more thorough briefs on the enforceability of the 1925 ban.

Even without the 1925 ban, or the new trigger law, the state’s six-week abortion ban remains in place.

That ban, known as Senate Bill 8, is enforced through a novel scheme – already mimicked in other states – to empower legal vigilantes to sue doctors and anyone else who helps a woman end a pregnancy once fetal cardiac activity can be detected.

Few lawsuits have been filed SB8 took effect Sept. 1. But the threat of ruinously costly lawsuits caused a sharp drop in the number of abortions in Texas.

Those criminal abortion statutes are not unconstitutional—there is no reason [Texas] cannot enforce them again,” now that the U.S. Supreme Court has ruled in Dobbs that states have authority to ban abortion, Paxton’s office argued…

Tarrant County’s district attorney does intend to pursue abortion prosecutions…