Texas ‘Trigger Law' Takes Effect, Makes Performing Abortion a Felony

With Texas’ trigger law in effect as of Thursday, performing an abortion in the state is now a felony punishable by up to life in prison.

The state’s trigger ban on abortion comes 30 days after the U.S. Supreme Court issued its final judgment on Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and allowed states to set their own laws on abortion. The final judgment was issued on July 26, more than a month after the nation’s highest court issued the opinion and order on June 24.

“The trigger law eliminates that doubt and theoretical debate," explained Dallas-based attorney David Coale, who specializes in appellate law. "If you perform an abortion in Texas, you have a serious risk of criminal liability unless you can establish that defense. Boom. Period. No more constitutional protection."

“There are still some lingering issues about if those old laws are in effect, how much additional liability they might create. But that’s kind of a matter for down the road," he added.

Texas is one of 13 states that had a trigger ban in place before the Supreme Court decision. The trigger ban was passed by the Texas Legislature in 2021.

Rape and incest are not considered exceptions under the ban. There is an exception if the mother’s life is in danger, Coale said. Under the trigger ban, the Texas attorney general is permitted to seek a civil penalty for at least $100,000 against someone who violates the statute.

Coale said he foresees ebb and flow with enforcement.

“The law is actually enforced at the county level by district attorneys who are elected at the county level and have complete discretion about what to charge or not charge,” he said. “Obviously, [Attorney General] Ken Paxton and the central administration of the state are not happy with that position. They have a more conservative view of how this law ought to be enforced. In the next legislative session, you’re going to see some battles about who else might be able to bring criminal prosecutions besides the traditional county DA. There was a suggested law that some other county could step in.”

While legal battles are ongoing, Kimberlyn Schwartz with Texas Right to Life called Thursday an “important step” in the organization’s movement. Texas Right to Life is the state’s largest and oldest anti-abortion organization.

“It’s so encouraging knowing that we saved about 167 babies per day since Roe v. Wade was overturned. That’s a combination of the Texas Heartbeat Act, which took effect last year and our pre-Roe v. Wade laws,” Schwartz said Thursday. “We’re making sure, not only are we stopping abortions here but we are also building resources, a huge network of statewide resources for pregnant women to seek help.”

Texas, the country's second-largest state, has banned most abortions once fetal cardiac activity has been detected, which can be as early as six weeks into pregnancy, before many women know they're pregnant. The ban has been in place for almost a year, since courts refused to stop the law last September.

While clinics were severely limited in the services they could provide during that time, they officially stopped offering abortions on the day of the Supreme Court ruling. Paxton, a Republican, argued that state laws that banned abortion before Roe v. Wade could be enforced ahead of the implementation of the trigger law.

Since the June 24 opinion, Whole Women’s Health was among abortion providers in the state that scaled back on operations in Texas. In July, CEO Amy Hagstrom confirmed plans of moving its Texas operations to New Mexico.

“We will NEVER give up on Texas. We will NEVER give up on our WWH family. We have fought extreme anti-abortion laws before. We believe goodness will prevail and abortion will be legal in Texas again. Let’s continue fighting. Our love is much stronger than their hate,” the provider tweeted Thursday.

District attorneys in Dallas and some other populous Texas counties have promised not to bring charges under the new law, according to The Dallas Morning News. Though, neighboring counties Denton and Tarrant said they plan to prosecute under the law.

The political response to the change was swift: Democrat Beto O'Rourke chose Thursday to unveil the first TV ads in his campaign against Republican Gov. Greg Abbott, who signed off on the statute.

One of the ads includes a voice-over saying some women will die because of the law.

"From this day forward," the ad begins, "women all across Texas are no longer free to make decisions about our own body."
Meanwhile, Texas has challenged a legal interpretation put forth by the federal government that was aimed at requiring Texas hospitals to provide abortion services if the life of the mother is at risk. On Wednesday, a federal judge temporarily blocked the government from enforcing that interpretation.

Texas argued that the federal guidance would have required hospitals to provide abortions before the mother's life is clearly at risk, which would have violated the state's trigger law.