By Eleanor Klibanoff, The Texas Tribune
Performing an abortion is now a felony punishable by up to life in prison in Texas after the state’s trigger law, which has only narrow exceptions to save the life of a pregnant patient, went into effect Thursday.
The law was “triggered” when the U.S. Supreme Court issued its judgment in Dobbs v. Jackson, the case that overturned Roe v. Wade and allowed states to set their own laws about abortion.
Abortion clinics across Texas had already stopped performing the procedure, fearing prosecution under state laws that were on the books before Roe v. Wade.
Texas now has three significant abortion bans in place and several administrative regulations governing the procedure, setting up a potential conflict as the largest state to ban abortion navigates this new legal landscape.
[New Texas law increasing penalties for abortion providers goes into effect Aug. 25]
The trigger law criminalizes performing an abortion from the moment of fertilization unless the pregnant patient is facing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.” The statute specifically prohibits prosecuting a pregnant patient who undergoes an abortion.
Violations of the law are punishable by up to life in prison. The statute also says that the Attorney General “shall” seek a civil penalty of not less than $100,000, plus attorney’s fees.
The Texas District and County Attorneys Association has raised concerns about this language.
“If this sends up a double jeopardy red flag for you, congratulations,” a memo on the group’s website reads, citing a 1994 case where the Supreme Court ruled that a defendant who is convicted and punished for a criminal offense cannot also have a non-remedial civil penalty imposed against them. Similarly, if a defendant pays a civil fine, they cannot be criminally prosecuted for the same offense.
“By requiring [the office of the Attorney General] to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine,” the memo reads, “the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion ‘trigger law’ crime if any of those civil fines are collected by OAG.”
Charles “Rocky” Rhodes, a law professor at the South Texas College of Law, said it’s not yet clear whether the $100,000 penalty would foreclose criminal prosecution.
“I might try [that defense] if I was representing somebody, but … I don’t think there’s a clear slam dunk there,” he said.
The civil fine, though, may prove to be an important piece of enforcement as more prosecutors come out publicly in opposition to the criminal laws. Several major cities are considering or have passed measures that prohibit the use of local funds to investigate or prosecute abortion-related crimes, and district attorneys in five large counties — Bexar, Dallas, Fort Bend, Nueces and Travis — have said they won’t bring criminal charges in these cases.
Already, conservative lawmakers have said they intend to propose legislation to allow prosecutors to bring abortion cases outside their own jurisdiction if the local district attorney won’t.
“That’s never been done in Texas, but the Legislature probably can at least start that ball rolling,” said Dallas attorney David Coale. “Then, you’ve got prosecutors with conflicting opinions about the same set of facts, and then you’ve really got a zoo.”
Other abortion laws
There are also looming legal questions about how these laws align with the state’s other abortion statutes. The pre-Roe statutes, which date back to Texas’ first criminal code in 1857, come with two to five years in prison, compared with the five years to life in the trigger ban.
“Each of the laws have a little bit different scope, different punishments and potential arguments about how far they extend,” Rhodes said. “The position of the Texas Legislature is going to be that these laws are complementary, rather than in conflict.”
The pre-Roe statutes are currently in effect, but the state Supreme Court has not issued a final ruling on whether they can be criminally enforced going forward. Coale said this legal limbo may push prosecutors to bring charges under the trigger law.
“If you’re a prosecutor, why on earth would you go anywhere near that?” he said. “You’re going to charge something under the new statute in the most limited way you can that clearly doesn’t conflict with anything in the old statutes.”
If a prosecutor brings a case under the trigger law, Coale said defendants will likely try to argue that the statutes conflict. But much of this will remain theoretical until a test case is identified and charged, which may not happen immediately.
“My expectation is what’s going to happen is exactly what happened in SB 8,” he said, referring to the civilly enforced ban on abortions after about six weeks of pregnancy. “People are going to err on the side of caution and … the deterrent effect is going to be huge.”
One significant distinction between the two laws is that, while both statutes criminalize the person who performs the illegal abortion, the pre-Roe statutes also allow charges to be brought against anyone who “furnishes the means” for an abortion.
“The trigger law really is targeted at the abortion provider, while the old law … also has this additional basis of accomplice liability for the person who procures the means to be able to have an abortion,” said Rhodes. “The law is vague as to what that really means though.”
In the age of medication abortion, where people can get abortion-inducing pills mailed to their homes from overseas pharmacies or advocacy networks, identifying who performed or furnished the means for an illegal abortion will likely become more difficult.
Already, nonprofit abortion funds that help people travel out of state have stopped their work, fearing potential criminal prosecution under the pre-Roe statutes. Lawmakers in Texas and in other conservative states have discussed finding ways to prohibit interstate travel for abortion.
“People are saying some things in their zeal about abortion that are just not very democratic, and there’s no other polite way to say it,” Coale said.
Even in jurisdictions where police and prosecutors aren’t actively working to identify and charge these cases, the threat of civil action still looms. Texas remains under Senate Bill 8, which allows any private citizen to sue anyone who “aids or abets” in an abortion after about six weeks of pregnancy.
With $10,000 per abortion on the line, Coale said, there’s significant motivation for private citizens to try to identify people who have had an abortion — and, in the process, bring them into the criminal justice system.
“As long as we have SB 8, people are going to be out there … trying to get that $10,000 penalty,” he said. “Who else will have their hand in it will depend on who is in charge.”
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/08/25/texas-trigger-law-abortion/.
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