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Abortions in Texas have stopped after Attorney General Ken Paxton said pre-Roe bans could be in effect, clinics say

Paxton and some anti-abortion activists are arguing that state laws that banned abortion before Roe v. Wade — that were never repealed — could now be in effect.
Credit: KHOU

TEXAS, USA — This article originally appeared in The Texas Tribune.

Abortions in Texas have ceased following a Supreme Court ruling that eliminated the constitutional protection for an abortion and ensuing legal uncertainty, Whole Woman's Health and Planned Parenthood Texas said.

The U.S. Supreme Court on Friday ruled to overturn Roe v. Wade, allowing states to set their own laws regulating abortion procedures. Texas has a “trigger” law in place that will ban all abortions from the moment of fertilization starting 30 days after the Supreme Court’s judgement, which is typically issued about a month after the initial opinion.

But some clinics and abortion funds are ceasing services now because the attorney general of Texas and some anti-abortion activists are arguing that state laws that banned abortion before Roe v. Wade — that were never repealed — could now be in effect in Texas.

“We must pause abortion services at our separate organizations while our legal teams continue to review today’s devastating ruling and how it impacts and triggers existing Texas laws, including total abortion bans,” said Jeffrey Hons, president and CEO of Planned Parenthood South Texas.

He said abortion services at Planned Parenthood Gulf Coast, Planned Parenthood of Greater Texas and Planned Parenthood South Texas have all ceased.

Texas Attorney General Ken Paxton issued an advisory Friday warning that some prosecutors could immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe v. Wade that the Legislature never repealed.

“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” Paxton wrote. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”

As a result of the state’s pre-Roe status, providers and abortion funds have ceased operations in the legal confusion.

Whole Woman’s Health, the nation’s largest independent abortion provider, said it has temporarily halted abortion services in its four Texas clinics located in Austin, Fort Worth, McAllen and McKinney.

“We don’t agree with Paxton about the interpretation of the ban, but to protect our staff and patients from hostile officials in Texas, we have ceased providing abortion care today,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, in a press conference Friday.

Alamo Women’s Reproductive Health, which provides abortion services in San Antonio, has also stopped providing abortions Friday, said Andrea Gallegos, the clinic’s executive director.

Abortion funds, too, have paused operations amid the threat of legal action in Texas. The Lilith Fund for Reproductive Equity, an abortion fund that provides financial assistance to people seeking abortions, and the Texas Equal Access Fund both said they have stopped funding abortions in Texas due to the state’s pre-Roe status. 

“Due to the uncertainty and risk of what the decision could bring, we are pausing funding today until we have had a chance to understand the decision,” the Texas Equal Access Fund wrote on Twitter.

Texas first enacted a criminal ban on abortion in 1854. That ban was never repealed, but a 2004 case in the Fifth Circuit Court of Appeals found that by passing laws that govern abortions — such as the availability of abortions for minors and the practices of abortion clinics — the Texas Legislature repealed its old bans by regulations that implied the ban was no longer in effect.

Still, Jonathan Mitchell, a former solicitor general for Texas and the architect of Senate Bill 8, which banned abortions in Texas as early as six weeks, argued that the pre-Roe statute is immediately enforceable in Texas except procedures necessary to save the life of the patient.

Previously, prosecutors did not pursue charges against patients or providers under Texas’ laws because courts would not uphold convictions under Roe, he said. Now, “no such obstacle exists anymore because Roe has been overruled,” he said in a statement.

The Lilith Fund said that because anti-abortion activists are arguing that the laws predating Roe v. Wade could go back into effect, they ceased operations to protect abortion fund staff and volunteers from the risk of arrest even while legal analysis “is still in the early stages.”

“Lilith Fund has been forced to pause direct funding of abortion care while we evaluate the impact of the recent decision by the U.S. Supreme court,” a statement from the Lilith Fund said. “We are evaluating how we may be able to otherwise assist pregnant Texans, but do not yet have answers.”

Emily Berman, an associate professor at the University of Houston Law Center, said it's unclear whether the old bans would be upheld in court.

"We are in a gray area with respect to what are sometimes called zombie laws, the pre-Roe holdovers," Berman said. "In some ways, it’s sort of going to be up to local prosecutors to decide if they want to bring cases."

She said that while prosecutors could decide to wade into such a legal battle, if they simply wait for Texas' "trigger" law to take effect, their cases will be on more solid footing.

Texas’ “trigger” law won’t go into effect until 30 days after the Supreme Court’s judgment, which could take about a month to be published. Texas’ law will have narrow exceptions to perform abortions only to save the life of a pregnant patient or prevent “substantial impairment of major bodily function.” It will criminalize the person who performs the abortion, not the person who undergoes the procedure.

More than half of all states are expected to essentially ban abortion in the coming months.

Some clinics in neighboring states have also said they have paused abortion services Friday. Planned Parenthood Great Plains said Friday that it has stopped providing abortions in Arkansas. Planned Parenthood in Texas said their “doors are open and they will remain open to serve Texans” but has not said whether the organization is providing abortion procedures in Texas Friday.

In Texas and other states where abortion procedures will no longer be legally protected, Whole Woman’s Health said it will continue to operate a program that provides financial assistance to patients who need to travel for out-of-state care.

“We will do everything we can to help obtain safe, timely, affordable care for those whose rights and access to safe and legal abortion services have been cruelly and unjustly revoked,” Miller said in a statement.

The provider, which largely serves the South and Midwest, said it will continue to operate clinics in Baltimore; Minneapolis; Alexandria, Virginia; and Charlottesville, Virginia. It will also offer abortion pills by mail to patients in Illinois, Maryland, Minnesota, New Mexico and Virginia.

“Whole Woman’s Health will continue its long and proud tradition of providing high-quality, compassionate, personal abortion care in the remaining states where pregnant people’s needs and rights are still respected and protected under law,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health in a statement.

The abortion provider said it is “exploring plans” to expand in-clinic and mail services in additional states where abortion is legally protected.

James Barragán contributed reporting.

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