Roe Has Fallen. What’s Next?

Texas reached an extraordinary milestone in the history of human rights in our state. Elective abortion, the deliberate destruction of unborn babies in the womb, is no longer legal, thanks to Texas’ Human Life Protection Act. At the same time, vast resources for women with unplanned pregnancies are available throughout the state. What comes next?

Roe Is No More!

On Friday, June 24, the United States Supreme Court handed down its much-anticipated opinion in Dobbs v. Jackson Women’s Health Organization to answer the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Justice Samuel Alito wrote the extraordinary opinion, joined by justices Thomas, Gorsuch, Kavanaugh, and Barrett.

The opinion completely overturned the 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey precedents that have prevented states from protecting unborn babies from abortion before viability.

Justice Alito wrote, “… procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” The Court’s new precedent allows state legislatures to regulate and even ban abortion as they did before Roe.

We are ecstatic. The Supreme Court finally remedied a terrible decision made nearly half a century ago that profoundly damaged society in America.

Legal abortions have claimed the lives of more than 63 million unborn children and have hurt countless women. In Texas and many other states, that is no longer happening.

Furthermore, Roe’s unsound and ultimately indefensible reasoning cost the trust of millions of Americans in the Supreme Court. This opinion rebukes the 50-year-old lie that the Constitution has a right to abortion, which it does not have. This new decision begins to restore confidence that the five-justice majority of the Supreme Court can interpret the Constitution on abortion-related issues without imposing any sort of legislative agenda.

Texas Is Well Prepared

After nearly half a century, states can finally protect mothers and unborn babies from the tragedy of abortion. Pro-life Governor Greg Abbott and the state legislature have already taken giant steps to do just that. Texas is well prepared for this moment.

Last year, the Texas Legislature passed, and Gov. Abbott signed into law several substantial measures to protect unborn babies from abortion and support women with unplanned pregnancies.

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The Human Life Protection Act is the last stake in the heart of the abortion industry in Texas.

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The Human Life Protection Act

First, the Legislature passed HB 1280, the Human Life Protection Act (HLPA) by Rep. Giovanni Capriglione and Sen. Angela Paxton, to completely protect unborn babies from abortion beginning at conception.

That bill was among the top priorities of Texas Alliance for Life^[1] and our principal partners: the Texas Catholic Conference of Bishops and Texans for Life.

The law will go into effect on August 25, 30 days after the Court issued its final judgment. For this reason, the HLPA is sometimes called the “trigger law.”

The Human Life Protection Act is the last stake in the heart of the abortion industry in Texas.

Stopping Abortion Providers

HB 1280 has three enforcement mechanisms. First, the law makes performing an abortion a first-degree felony offense, punishable by up to 99 years, equivalent to premeditated homicide.

Second, the Texas attorney general can bring a fine of at least $100,000 for any violators. We have no doubt that Attorney General Paxton would not hesitate to pursue this.

Third, the HLPA requires the mandatory loss of the medical license of a doctor, nurse, or pharmacist who participates in an illegal abortion.

Even if a district attorney decides to categorically fail to prosecute violators, which we believe would be a dereliction of duty, the second and third penalties will still deter abortions.

Like all abortion laws in Texas, women on whom abortions are performed have no liability and cannot be prosecuted or fined. As explained by our special counsel and constitutional law scholar Paul Linton, women were never prosecuted for abortion in Texas or any other state before Roe.^[2]

Also, HB 1280 does not allow prosecution for the treatment of a miscarriage or ectopic pregnancy. The treatment of each for these medical conditions are not considered abortion in Texas.^[3] It is our understanding that the same is true across the nation.^[4]

Texas’ Pre-Roe Statutes

Even before the HLPA goes into effect later this summer, the Texas pre-Roe abortion statutes^[5] have gone back into effect. In 1973 the Supreme Court blocked the enforcement of those abortion laws but did not repeal them (which a court is not able to do).

Nor did the Legislature explicitly repeal the ban, as explained in an advisory letter from pro-life Attorney General Ken Paxton the same day Roe was repealed.^[6] Whole Woman’s Health and other abortion providers have challenged enforcement of the pre-Roe law.^[7] But even the abortion providers are acting as if the suit has little chance of success. Whole Woman’s Health released a letter announcing it is immediately shuttering its four abortion facilities in Texas. All the other 19 abortion facilities also have ceased abortions, according to the pro-abortion Guttmacher Institute.

Vast Support for Women and Their Babies

Also, in 2021, the Legislature appropriated vast funds to assist low-income women, especially women with unplanned pregnancies.

The Legislature appropriated $100 million for the current two-year budget toward the highly successful Alternatives to Abortion program. That program provides services for women facing unplanned pregnancies to assist them in carrying the baby to term, giving birth, and keeping or placing the baby for adoption. Support is available for at least three years after birth from nearly 200 pregnancy centers, maternity homes, and adoption agencies across the state, serving 150,000 clients each year, far more than the 55,000 abortions in Texas in 2020.

For uninsured pregnant women with incomes up to 200 percent of the federal poverty level, the state’s Medicaid program pays prenatal, childbirth, and follow-up care for the mothers for six months and babies for 12 months. The Texas Medicaid program pays for more than half the births in Texas, costing nearly $1.2 billion per year.

The Legislature continued funding various free services for low-income women, appropriating $352 million over two years toward breast and cervical cancer screening, family planning, pregnancy testing, pelvic exams, sexually transmitted infection services, screening for and treatment of cholesterol, diabetes, and high blood pressure. The HealthyTexasWomen.org website lists thousands of providers.

Shortly after Dobbs was released, Governor Abbott announced a new website with a comprehensive list of state resources.^[8]

In addition, hundreds of privately-supported non-profit organizations and church organizations provide programs for pregnant women and their unborn babies before and long after birth.

Going Forward

Texas Alliance for Life is at a point unattainable without our tens of thousands of donors, our hundreds of volunteers, our millions of pro-life voters, our pro-life elected officials and judges, our board of directors, and our staff. We cannot thank you all enough.

Getting to this point has been quite a journey. But we are just getting started.

What’s next for Texas Alliance for Life and the pro-life movement in the Lone Star State?

We began planning when Justice Amy Coney Barrett joined the Supreme Court in October 2020 and especially when the Legislature passed the Human Life Protection Act in May 2021.

For the first time in 50 years, Texas is free to fully protect unborn babies and their mothers from abortion. That is what we are setting out to do.

We will be rolling out our plans in the coming weeks and months. Stay tuned.

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^[1] “Time for the Human Life Protection Act,” January 12, 2021, https://www.texasallianceforlife.org/time-for-the-human-life-protection-act-2/

^[2] Linton memo to Dr. Joe Pojman, May 5, 2022, https://www.texasallianceforlife.org/wp-content/uploads/Linton-Memo-Women-Were-Never-Prosecuted-05_15_2022.pdf.

^[3] See the definition of abortion in Texas Health and Human Services Code, Sec. 245.002. https://statutes.capitol.texas.gov/Docs/HS/htm/HS.245.htm#245.002.

^[4] “Fact Sheet: Medical Indications for Separating a Mother and Her Unborn Child” by Ingrid Skop, M.D., https://lozierinstitute.org/fact-sheet-medical-indications-for-separating-a-mother-and-her-unborn-child/.

^[5] The 1925 abortion ban, with a 2-5 year criminal penalty, was codified in Art’s 1191-1196, Penal Code, under “Offenses Against the Person.” It was an update of Texas’ original 1854 law that banned abortion on “any woman being with child.”

^[6] “AG Paxton Celebrates End of Roe v. Wade; Announces Abortion Now Illegal in Texas,” June 24, 2022. https://www.texasattorneygeneral.gov/news/releases/ag-paxton-celebrates-end-roe-v-wade-announces-abortion-now-illegal-texas.

^[7] See Whole Woman’s Health v. Paxton, 2022-38397, 269th District Court, and In re Ken Paxton, 2022-0527, Texas Supreme Court.

^[8] “Gov. Greg Abbott says Texas launched ‘one-stop’ website for women seeking info on reproductive health,” Rebecca Salinas, https://www.ksat.com/news/texas/2022/06/29/gov-greg-abbott-says-texas-launched-one-stop-website-for-women-seeking-info-on-reproductive-health/.