Here are 3 abortion laws in Texas with punishment up to life in prison, $100,000 fine
Twenty days ago, the Supreme Court overturned Roe v. Wade, the landmark 1973 decision that established the constitutional right to abortion.
In Texas, that means a trigger law, House Bill 1280, will soon criminalize abortion at any time after fertilization. The ban will take effect 30 days after the final judgment in Dobbs v. Jackson Women’s Health Organization is issued, which will be about a month after the opinion’s release, according to Emily Berman, a constitutional law professor at the University of Houston Law Center. The trigger ban will make performing an abortion a felony, subject to penalties of up to life in prison and a fine of at least $100,000.
Though the trigger law won’t take effect until late August at the earliest, a 1925 Texas law outlawing abortions is currently in effect. The penal code makes performing an abortion punishable by two to five years in prison and a fine between $100 and $1,000.
Another Texas law, Senate Bill 8, also known as the Texas Heartbeat Act, will continue to exist alongside the trigger law and the 1925 ban. The law, which went into effect on Sept. 1, 2021, bars abortions after a fetal heartbeat is detectable, about five or six weeks from a person’s last period. The suits under SB 8 award a minimum of $10,000 to the person bringing the case.
Related content
What’s the difference between the 1925 ban, trigger law and heartbeat act?
The trigger ban will apply to anyone who “performs, induces, or attempts an abortion.”
The other two bans, both of which are currently in effect, apply more broadly to people who assist someone in getting an abortion. The 1925 ban prohibits a person from performing an abortion procedure or “designedly administer[ing] to a pregnant woman or knowingly procur[ing] to be administered with her consent any drug or medicine” for an abortion. It also applies to people who knowingly furnish the means for procuring an abortion. SB 8 allows suits against not only those who perform abortions after cardiac activity can be detected, but also anyone who assists in any way, including by providing funding, Berman said.
“SB 8 is broader, it’s anyone who facilitates an abortion, whereas trigger law is a person who performs it,” says Josh Blackman, a law professor at South Texas College of Law Houston. “So it’s a much wider range of civil liability under SB 8.”
Another difference is that SB 8 is enforced through civil suits brought by private individuals, while the trigger ban and the 1925 ban are criminal laws enforced by government prosecutors, according to Blackman. The penalties will be much steeper once the trigger ban is enforced.
Along with these three far-reaching abortion bans, Senate Bill 4, which took effect in December 2021, prohibits providing medication abortion after 49 days of gestation.
None of the laws apply to the pregnant people who have had an abortion, though prosecutors have brought criminal charges using other laws, such as child endangerment, murder and distribution of drugs to a minor, according to the Texas Policy Evaluation Project.
To what extent can Texans be sued under SB 8?
SB 8 will add an extra layer of restriction after the trigger ban goes into effect, because anyone suspected of “aiding and abetting” an abortion after cardiac activity is detected can be sued.
Under SB 8, can people be sued for donating to abortion charities, helping their friends with travel expenses or driving them to get an abortion?
That remains uncertain, law experts say. Civil liability is possible under SB 8 and a person could be charged with a crime under the 1925 penal code for assisting someone in getting an abortion. Texas’s homicide statute could also be used to bring charges against someone who conspires or assists a pregnant person to access an abortion in the state, per the Texas Policy Evaluation Project.
“Nobody knows the extent to which these laws will apply to people who assist others in getting abortions performed in places where it is legal,” Berman said. “But the funding networks in Texas have ceased operating out of concern for legal liability.”
Until lawsuits are brought to courts, we won’t have a clear answer about how much SB 8 really encompasses, according to Blackman.
“The more likely effect would be that people to avoid liability would perhaps not make those sorts of actions,” Blackman said.
What exemptions do the abortion bans allow for?
The trigger ban, the 1925 penal code and SB 8 allow for exceptions in a medical emergency to save the life of the pregnant person. This means that they’re experiencing a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy” that puts them “in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” The physician providing the abortion is required to submit documentation describing the condition and certify that the abortion was necessary, according to the Texas Policy Evaluation Project.
Exemptions to the abortion bans are complicated by health care providers having different interpretations about when a condition becomes life-threatening, per the Texas Policy Evaluation Project.
Texas’s laws do not permit abortions where the pregnancy resulted from rape or incest.
What effect has the Heartbeat Act had on Texas patients?
Since it took effect almost a year ago, SB 8 has compromised the care that physicians are able to provide and put patients’ health at risk, according to a study from the Texas Policy Evaluation Project that examined the effect of the law in health care settings.
Under SB 8, an abortion could be provided for any reason prior to the detection of embryonic cardiac activity. After that point of pregnancy, abortion could only be provided in cases of medical emergencies where a physician documented that an abortion was necessary in order to save the patient’s life.
“What we found through interviews with healthcare providers as well as with patients who developed complications during their pregnancy, is that this meant that patients often had to become sicker in order for their physician to intervene,” said Kari White, who co-authored the study, published in the New England Journal of Medicine on June 22. “Physicians could not intervene until a patient developed life threatening complications, like hemorrhaging, or developed a life threatening infection, like sepsis.”
As a result, many physicians would send patients home, or advise them to go out of state for care, White said. For one patient with rupture of membranes before fetal viability, she decided it was safer to get on a plane and risk further complications than stay in Texas and get sicker. Those with financial resources and social support can travel to New Mexico, Kansas or Colorado, the nearest states where Texans can get facility-based abortion care.
Patients with a life-limiting fetal diagnosis, such as anencephaly (incomplete development of the brain, skull) or renal agenesis (failure of the kidneys to develop), are not exempt from SB 8. One 39-year old woman who participated in the study was frustrated with not being given an option of termination after she received fetal diagnoses of spina bifida and trisomy 18.
“When you already have received news like that and can barely function, the thought of then having to do your own investigating to determine where to get this medical care and to arrange going out of state feels additionally overwhelming,” she said.
Patients with pregnancy complications like preeclampsia or preexisting medical conditions that could be exacerbated by pregnancy are forced to delay an abortion until their conditions become life-threatening, or until fetal cardiac activity is no longer detectable, the study says.
What effect will the three laws have working simultaneously?
Following the implementation of the trigger ban, SB 8 may make health care providers reluctant to intervene in a miscarriage if there’s still detectable cardiac activity, White said.
“Miscarriage and treatment of ectopic pregnancy are exempt under both SB 8 and the trigger ban,” White said. “But what we heard in our interviews that we did with providers and even patients following implementation of SB 8, that that didn’t always work out in practice because there was so much concern about the legal risk for providing care if embryonic cardiac activity was still detectable.”
Because the penalties incurred by the trigger ban are much greater than its predecessors, there could be an even greater chilling effect in health care settings, White said. That interferes with physicians providing essential health care to people during pregnancy.
Clinicians have been reluctant or unable to provide abortion care for some of the following reasons, per the Texas Policy Evaluation Project:
Cancer requiring treatment or chemotherapy that will affect pregnancy
Ectopic pregnancy implanted in a cesarean scar
End-stage kidney disease, exacerbated by pregnancy
Fetal hydrops (edema) with mirror syndrome
Maternal cardiac conditions, such as cardiomyopathy and heart failure
Pre-viable rupture of membranes without signs of infection or hemorrhage
Selective fetal reduction in a twin or multifetal pregnancy
Severe hyperemesis gravidarum
“People who are experiencing complications during their pregnancy should not have to wait until they become on the brink of death, potentially admitted to the intensive care unit, developing life threatening infection in order to receive evidence based standard of care services,” White said. “But those are the circumstances that these types of policies have placed physicians and patients in.”
