87th LegislatureTexas Republicans Weigh In on Leaked Supreme Court Draft Opinion

If Roe v. Wade is reversed, then Texas will have two sets of laws banning abortion, each with a different penalty for violations.
May 4, 2022
From city hall to the state capitol, Texas Republicans have heightened their efforts in the past two years to restrict abortion within the confines of Roe v. Wade.

Now that the seminal Supreme Court case may be overturned, Republicans are prepared for the result but may face a new challenge of harmonizing their previous efforts with the regained authority to punish abortion directly.

Politico obtained a draft majority opinion circulated privately between the Supreme Court justices and released it in an article published Monday night. The draft opinion strongly disaffirms Roe and says the authority to regulate abortion before the point of fetal viability should return to the states.

The case is still pending and the final opinion has not been issued yet.

Texas passed a law last year to criminally punish elective abortions in the event that the Supreme Court reverses its decisions in Roe and Planned Parenthood v. Casey.

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The bill, House Bill (HB) 1280, was carried by state Rep. Giovanni Capriglione (R-Keller) in the Texas House and Sen. Angela Paxton (R-McKinney) in the Senate. Sometimes called the “trigger ban,” it was officially entitled the Human Life Protection Act.

Paxton released a statement expressing hope that the court maintains the position revealed in the draft.

“As an adopted child, I have a deeply personal perspective on the value of human life,” Paxton stated.

“My life began as the result of an unplanned pregnancy, and I am thankful my birth mother chose life. The Human Life Protection Act promotes human dignity by protecting the unborn in Texas.”

The Republican Party of Texas also released an official statement celebrating the new law.

“As a result, if the leaked decision is ultimately rendered, unborn children will be legally protected in Texas,” the statement reads.

The press release also touts the heightened funding for the Alternatives to Abortion program that accompanied the passage of the Texas Heartbeat Act, a state law passed as Senate Bill (SB) 8 that bans the abortion of unborn children with detectable cardiac activity.

State Rep. Matt Krause proposed the amendment to the state budget that increased the program’s funding by $20 million.

Some Texas Democrats see proposals to increase state funding for pregnancy healthcare as an opportunity for bipartisanship, including state Rep. Donna Howard (D-Austin), who vociferously opposed SB 8 on the Texas House floor.

But while Texas Republicans have largely taken the revelation as an opportunity to celebrate, it also presents grave questions about the security of the court and may require a detangling of certain Texas laws, officials say.

U.S. Senator Ted Cruz (R-TX) called the leak “shocking.”

“If this report is true, this is nothing short of a massive victory for life and will save the lives of millions of innocent babies. But while I continue to wait for the Supreme Court’s ultimate opinion, I am appalled by the shocking breach of trust posed by this leak,” Cruz stated.

“This is a blatant attempt to intimidate the Court through public pressure rather than reasoned argument. I hope my fellow former clerks and the entire legal community will join me in denouncing this egregious breach of trust.”

State Rep. Briscoe Cain (R-Deer Park) agreed, theorizing that public outcry was an intended consequence of the leak.

“There’s little doubt the leak was an intentional act designed to trigger pressure campaigns targeting the Court’s conservative justices,” Cain said.

Cain has remained especially vocal about the fact that Texas never repealed the abortion ban that the Supreme Court considered in Roe v. Wade. The texts of HB 1280 and SB 8 both observe that these older statutes, though unenforced, are still on the books.

While Roe recognized a right to abortion, Cain says Texas may still criminally punish “furnishing the means” for procuring abortions, which the Supreme Court did not recognize to be a right.

However, if the Supreme Court reverses Roe and returns the authority to regulate abortion back to the states, then the sole obstacle preventing enforcement of both HB 1280 and these older statutes will be removed.

In other words, if Roe is reversed, then Texas will have two sets of laws banning abortion, each with a different penalty for violations.

The older statutes, formerly codified in Chapter 6 ½ of the Texas Penal Code as Article 4512, say that “any person” who administers an abortifacient drug to a pregnant woman or performs an abortion on her “shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled.”

On the other hand, HB 1280 makes this same crime a felony. It also allows exceptions for abortions meant to save the mother from death or serious bodily impairment, whereas the older statutes only allow exceptions for saving the mother from death.

Additionally, HB 1280 would take effect 30 days after the reversal of Roe, while prosecutions under Chapter 6 ½ could be legal immediately.

Cain said the two sets of statutes mostly overlap.

“So far HB 1280 appears to mesh well with the pre-Roe statutes. I have a few questions I am working on getting answered. For example: Considering that HB 1280 contains a 30 day grace period before it takes effect, could a prosecutor use article 4512.1 of the Texas Civil Statutes to prosecute an abortionist after Roe is overturned?” Cain said.

“There are, of course, provisions in HB 1280 that are preferred over the pre-Roe statutes. The lowest punishment under article 4512.1 is two to five years imprisonment, whereas under HB1280 the punishment is a second degree felony, which is punishable by two to twenty years imprisonment.”

In the meantime, the Supreme Court still has until the end of the term — June or July, typically — to issue its official opinion in the case, which concerns a ban on abortions after 15 weeks of gestation passed by the State of Mississippi.


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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.