87th LegislatureJudicialJudge Blocks District Attorneys in Major Texas Counties From Enforcing Pre-Roe Abortion Ban

District attorneys in Travis, Bexar, Harris, Dallas, Tarrant, Hidalgo, and Collin counties cannot enforce the old ban for now.
June 28, 2022
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A state court judge in Harris County blocked district attorneys around Texas from enforcing the state’s pre-1973 abortion ban.

Granting the request of several abortion facilities that sued to stop the enforcement of the ban, Judge Christine Weems issued a temporary restraining order that stops district attorneys in Travis, Bexar, Harris, Dallas, Tarrant, Hidalgo, and Collin counties from prosecuting violations of the ban against the abortion facility plaintiffs. The order also applies to several state agencies that license doctors, nurses, and pharmacists.

“The Court finds that Texas’s Pre-Roe Ban is repealed and may not be enforced consistent with the due process guaranteed by the Texas constitution,” the order reads.

Texas has two abortion bans on the books. One, a “trigger ban” entitled the Human Life Protection Act, passed last year and will take effect 30 days after the Supreme Court issues its official judgment in Dobbs v. Jackson. Weems’ order blocks enforcement of the other abortion ban, the 1925 law that the Supreme Court ruled unconstitutional in Roe v. Wade.

Shortly after the Supreme Court issued the Dobbs opinion that overturned Roe, Texas Attorney General Ken Paxton released an advisory document saying the older ban regained effect immediately.

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The Human Life Protection Act recognizes that the Texas legislature never repealed this older ban. However, the abortion facilities that sued argue that it was impliedly repealed.

“As a threshold matter, the Pre-Roe Ban was repealed as of the Roe decision in 1973. It was found nowhere in Texas’s criminal or civil statutes for nearly four decades, and even now it appears in Vernon’s Texas Civil Statutes with the proviso that, according to the Fifth Circuit, these antiquated statutes were long ago repealed by implication,” the abortion facilities claim in their petition.

“Moreover, the Pre-Roe Ban cannot be harmonized with the Trigger Ban, which contains only legislative dicta that the Pre-Roe Ban remains in effect while establishing an entirely different and irreconcilable range of penalties for the same offense.”

The 2021 trigger law makes abortion a felony and directs the state to revoke the licenses of medical professionals that perform or attempt abortions. It also authorizes the Texas attorney general to sue violators for civil penalties of at least $100,000.

On the other hand, the pre-Roe ban punishes abortion with two to five years imprisonment.

The plaintiffs say these different schemes of punishment violate the guarantee of due process in the Texas Constitution.

Additionally, as evidence that the old ban was impliedly repealed, they point to a court ruling in a 2005 case challenging Roe. The plaintiff in that case was Norma McCorvey, the same plaintiff who sued anonymously as Jane Roe 30 years earlier.

In that case, the Fifth Circuit Court of Appeals found that the abortion restrictions Texas had passed since 1973 were inharmonious with the pre-Roe ban they were meant to replace.

“There is no way to enforce both sets of laws; the current regulations are intended to form a comprehensive scheme — not an addendum to the criminal statutes struck down in Roe,” the court ruling reads.

In response to the plaintiffs, the state points out that courts may not construe newer abortion laws to repeal older abortion laws, according to a new section the legislature added to the Government Code last year.

“A statute that regulates or prohibits abortion may not be construed to repeal any other statute that regulates or prohibits abortion, either wholly or partly, unless the repealing statute explicitly states that it is repealing the other statute,” the law reads.

Additionally, the trigger ban and the Texas Heartbeat Act both specify that Texas never repealed the pre-Roe ban.

These new clarifications in the law explicitly reject the Fifth Circuit’s 2005 finding, the state claims.

“So even if McCorvey had been correct in its prediction of Texas law in 2005—though it was not — it is contrary to Texas law to treat subsequent abortion regulations as impliedly repealing the preexisting criminal prohibitions,” the state’s response reads.

Additionally, Texas argues that abortion facilities lack the standing to sue on behalf of their employees and patients. While the issue of third-party standing has often divided the Supreme Court, especially when it comes to abortion facilities, the state argues that Texas law does not allow companies to sue on behalf of injuries their employees or customers might suffer.

“[W]omen are perfectly capable of bringing their own lawsuit to challenge any abortion regulation,” the Texas response reads.

While the temporary restraining order will stop the state from disciplining doctors, nurses, and pharmacists at these companies, some were already shielded from direct prosecution. The district attorneys for Travis, Dallas, Bexar, Nueces, and Fort Bend counties have already promised not to prosecute abortion crimes.

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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.