HOUSTON (CN) — Abortion providers from across Texas filed a lawsuit Monday against Republican Attorney General Ken Paxton, seeking an order blocking him from enforcing a pre-Roe v. Wade statute making abortion illegal.
Last Friday, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to abortion established in the 1973 Roe decision.
Shortly after the opinion was released, Paxton issued an advisory stating that prosecutors may begin filing charges against abortion providers that conduct the procedure after the reversal. According to Paxton, a 1925 law remained on the books in Texas that allowed them to do so.
“Although these statutes were unenforceable while Roe was on the books, they are still Texas law," wrote Paxton. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”
The 31-page lawsuit, filed in Houston state court, seeks to enjoin Paxton, Texas prosecutors and state medical licensing officials from enforcing the law, arguing the abortion ban was effectively repealed as a result of the Roe decision.
“It was found nowhere in Texas’s criminal or civil statutes for nearly four decades, and even now it appears in Vernon’s Texas Civil Statutes with the proviso that, according to the Fifth Circuit, these antiquated statutes were long ago repealed by implication,” the petition states.
First enacted in 1925, the law banned abortion unless it was required to save the mother’s life. Violators faced up to 10 years in prison along with possible civil penalties.
The law was challenged in 1970 by Norma McCorvey, who went under the pseudonym Jane Roe when she sued the Dallas County district attorney, Henry Wade, arguing that the law was unconstitutional.
That case worked its way up to the Supreme Court and on Jan. 22, 1973, it resulted in the landmark ruling that afforded women the right to seek an abortion nationwide.
The Texas providers argue that the pre-Roe ban cannot be enforced because it is not consistent with due course of law and the Fifth Circuit repealed the law by implication.
“The court concluded in that decision: ‘[t]he Texas statutes that criminalized abortion and were at issue in Roe have . . . been repealed by implication,’ because abortion regulations passed thereafter ‘cannot be harmonized with provisions that purport to criminalize abortion,’” the plaintiffs wrote.
Another issue raised in the lawsuit is that the 1925 law is inconsistent with current Texas laws that criminalize abortion.
First, there is Senate Bill 8. Passed by the Texas Legislature last year, the law bans abortion after approximately six weeks of pregnancy. To avoid judicial review, the law uses a novel enforcement scheme that shifts enforcement over to private citizens, allowing them to sue providers who violate the law for at least $10,000.
Second is the Texas' so-called "trigger law," House Bill 1280. The law makes it a second-degree felony to perform an abortion unless it is to preserve the life of the mother. Anyone found guilty of providing an illegal abortion faces up to 20 years of imprisonment. This law is set to take effect on July 24, which is 30 days after the Roe reversal.
The three statutes prescribe separate actions against an abortion provider for committing the same violation. The plaintiffs call this an “irreconcilable conflict” that is evidence of the 1925 law’s illegitimacy.
“With the blessing of five Supreme Court justices, politicians will soon be able to force Texans to suffer the serious risks, pains, and costs of pregnancy and childbirth against their will," Julia Kaye, staff attorney with the ACLU Reproductive Freedom Project, said in a statement. “But that day is not today, despite Attorney General Paxton’s campaign to stop all abortions immediately by threatening unlawful prosecutions under antiquated laws.”
Recognizing that the law is set to render them unable to provide abortions, the plaintiffs only challenge the attorney general's assertion that the pre-Roe ban is once again in effect. They request the court enjoin the defendants from any attempts to enforce the ban and enter a judgment declaring it as repealed.
A hearing on the plaintiffs' injunction request has been set for Tuesday at 9:30 a.m. Central time.
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