After the U.S. Supreme Court issued its opinion in Dobbs v. Jackson and overturned Roe v. Wade, Texas Attorney General Ken Paxton said district attorneys could begin prosecuting violations of the old Texas abortion laws that had gone unenforced since 1973.
However, according to the Texas Supreme Court’s July 1 order, the Harris County district court judge who issued the temporary restraining order may have exceeded her authority.
The Texas Supreme Court did not write an opinion to accompany its order. However, the justices asked both parties to submit briefs by July 7 regarding whether state district courts can block enforcement of criminal laws, especially in light of a decision the Texas Supreme Court made in 1994.
Ruling on a lawsuit that challenged Texas’ sodomy laws, the Texas Supreme Court stated in 1994 that civil courts only have jurisdiction over civil cases, meaning they cannot enjoin criminal laws unless their application bleeds over into civil issues.
“In this state’s bifurcated system of civil and criminal jurisdiction, a civil court has jurisdiction to declare constitutionally invalid and enjoin the enforcement of a criminal statute only when (1) there is evidence that the statute at issue is unconstitutionally applied by a rule, policy, or other noncriminal means subject to a civil court’s equity powers and irreparable injury to property or personal rights is threatened, or (2) the enforcement of an unconstitutional statute threatens irreparable injury to property rights,” the court’s 1994 opinion reads.
“[C]ivil equity courts have no jurisdiction to enjoin the enforcement of criminal statutes in the absence of irreparable harm to vested property rights.”
Texas has a two-part court system, reserving one channel for civil cases and another for criminal cases. These channels culminate in two high courts: the Supreme Court of Texas and the Texas Court of Criminal Appeals, which handle civil and criminal cases, respectively.
After the Friday order, several major legal issues still await resolution.
Even though the old abortion ban has not been enforced since the Roe decision in 1973, Texas has never repealed it. The legislature explicitly recognized the old ban in two new abortion laws passed last year: the Texas Heartbeat Act and the Human Life Protection Act, colloquially called the “trigger ban.”
However, the Harris County district court judge who blocked enforcement of the old abortion ban, Judge Christine Weems, found that the old law was “repealed by implication,” according to a federal court ruling from 2005.
The old abortion ban will likely wane in relevance once the Human Life Protection Act takes effect. Thirty days after the U.S. Supreme Court issues its judgment in Dobbs, the new state law will allow statewide enforcement by the attorney general and licensing boards as well as traditional prosecutions. In other words, anyone that attempts or performs an elective abortion will potentially face felony prosecution, $100,000 in civil penalties, and loss of medical license.
Additionally, the overturning of Roe may have opened the door to prosecutions under the current Texas Penal Code.
The state’s definition of murder includes ending the life of an unborn child. However, it makes an exception for lawful medical procedures. Under Texas law, elective abortion is no longer a lawful medical procedure.
No Texas abortion law authorizes penalties against the pregnant mother herself, and the legal definition of “abortion” in Texas law excludes miscarriages. Every Texas abortion law — the old ban, the Texas Heartbeat Act, and the trigger ban — all allow procedures meant to save the mother’s life, such as the termination of an ectopic pregnancy. The same general rule applies to abortion bans around the country.
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