Attorneys say resurrection of 1925 abortion law is a rollback of civil liberties

Some Texas abortion providers are now helping patients find appointments in other states after the Texas Supreme Court ruled that a 1925 Texas law outlawing abortions can be enforced. On Wednesday, provider Whole Woman’s Health announced plans to move its Texas operations to New Mexico.

By Julián Aguilar, The Texas NewsroomJuly 6, 2022 12:47 pm, ,

From The Texas Newsroom:

Even though Texas’ so-called trigger law that outlaws most abortions has yet to be implemented, providers in the state have stopped offering services after the state’s highest court ruled a century-old law can go into effect.

The Texas Supreme Court ruled late Friday that a 1925 Texas law outlawing abortions can be enforced. The decision opens abortion providers to civil penalties and lawsuits and came after a state district judge in Harris County temporarily blocked the law from going into effect. The Texas Supreme Court’s ruling does not allow for criminal enforcement of the law, but Marc Hearron, senior counsel at the Center for Reproductive Rights, told The Texas Newsroom the ruling has already had a chilling effect on providers.

“[There are] disciplinary proceedings to go against licenses for doctors and nurses, the facilities themselves, there are civil fines,” he said. “There’s just a lot of civil penalties that could rack up pretty quickly. And as a result, none of the providers are moving forward with providing right now.”

The ruling from the state’s high court came after the U.S. Supreme Court last month overruled Roe v. Wade, a landmark 1973 decision that guaranteed the right to choose to terminate pregnancy. The ruling returned that decision-making power to the states, which Texas interpreted as a green light to resurrect the 1925 law.

Texas Attorney General Ken Paxton celebrated the Texas Supreme Court’s decision on Twitter and said he’d continue to battle in court as the pre-Roe policies are “good law”. The case returns to the lower court later this month and could be placed on hold again.

“Our state’s pre-Roe statutes banning abortion in Texas are 100% good law. Litigation continues, but I’ll keep winning for Texas’s unborn babies,” he said.

Texas clinics change focus, plan to move

On Wednesday, Whole Woman’s Health announced plans to move its Texas operations to New Mexico. The organization ran four clinics in Texas that provided abortions prior to the court’s decision. The group launched a fundraiser to facilitate its move to New Mexico.

“We are asking for your help as we pack up our McAllen, Fort Worth, McKinney and Austin clinics, buy and renovate a building, relocate and hire staff, and set up licenses and certifications in New Mexico,” the group said on a GoFundMe page.

Whole Woman’s Health corporate vice president Andrea Ferrigno said on Tuesday that the group is also helping clients secure appointments for care in other states.

“We have developed our Wayfinder program, which is a program by which we are helping people secure appointments in other states. We help them with navigating whatever regulations are required in those places, navigate logistical arrangements for travel, financial support,” she told The Texas Newsroom. “And so that’s a lot of what we are continuing to do is to offer education about what’s legal and not legal in the United States.”

Though the state Supreme Court’s ruling only allows civil penalties to proceed as the case plays out, Paxton indicated he’d pursue prosecutions retroactively if criminal penalties were also lifted, Texas Public Radio reported.

“Let there be no mistake: the lower court’s unlawful order does not immunize criminal conduct, which can be punished at a later date once the temporary restraining order is lifted,” he said in a statement. “My office will not hesitate to act in defense of unborn Texans put in jeopardy by plaintiffs’ wrongful actions and the trial court’s erroneous order.”

David Donatti, an attorney with the American Civil Liberties Union, said Paxton’s intent means darker days for pro-choice Texans and abortion providers.

“The idea that a prosecutor or the attorney general can later come back and penalize conduct that was not illegal at the time it was taken, it just flies in the face of our fundamental notions of liberty and justice and due process,” Donatti told TPR on Tuesday. “This is a very frightening time, in the state of Texas, and in our country.”

Donatti and reproductive-rights advocates are also staring down the Texas so-called trigger law, which will outlaw most abortions and could go into effect later this summer or in early fall. The legislation, House Bill 1280, makes it a second-degree felony “for a person who knowingly performs, induces, or attempts an abortion” according to the bill analysis. The penalty increases to a first-degree infraction “if the unborn child dies as a result of the offense.” It is scheduled to take effect 30 days after the U.S. Supreme Court issues a final judgement of its ruling to overturn Roe v. Wade.

Hearron said a judgment is usually issued 25 to 30 days after the opinion to give both sides in the litigation an opportunity to motion for reconsideration. So far, he said, neither side has done that. Regardless, he added, Paxton is trying to speed up that process.

“The Texas Legislature decided [the trigger law] would not happen immediately. It would happen 30 days after the U.S. Supreme Court issued its judgment,” he said. “And what state officials are doing right now, what Paxton is doing right now is rushing, getting ahead of the extremely anti-abortion Texas Legislature.”

The U.S. Supreme Court decision has also led to an increase in Texans seeking sterilization procedures.

Dr. Jennifer Gulick, a Frisco-based OB-GYN, told KERA she has noticed an increase in patients who want their fallopian tubes tied. She was trained to not perform surgery on patients younger than 30 because of the potential for regret. But more doctors are moving away from that, she said.

“It seems very paternalistic to tell somebody that they can’t have this done if they’re well-informed and they understand the process,” she said.

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