Texas, the largest state to restrict abortions, now has three significant bans on the books, setting up a potential legal minefield. Texas AbortionRights AbortionBan AbortionRightsAreHumanRights GregAbbott AbortionIsEssential
Police form a line to prevent protesters from walking down Third Street at a rally for abortion rights in Austin on June 26.
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.“If this sends up a double jeopardy red flag for you, congratulations,” 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.
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 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.
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. 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.
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