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Texas judge blocks abortion prosecutions under 1925 ban

Texas providers immediately stopped performing abortions after last week’s Supreme Court ruling, but some will likely choose to reopen, at least temporarily, thanks to a restraining order issued Tuesday morning.

HOUSTON (CN) — A Texas state judge on Tuesday rewarded abortion providers’ efforts to keep a narrow window open for the procedure before a trigger ban put in motion by the U.S. Supreme Court’s reversal of Roe v. Wade snaps it shut.

The providers’ attorney, Marc Hearron with the Center for Reproductive Rights, said after the hearing the temporary restraining order granted by Harris County District Judge Christine Weems means that after all Texas providers immediately stopped doing abortions when the high court's Dobbs v. Jackson Women’s Health Organization decision came down last Friday, some will likely choose to reopen and start seeing patients again.

But he noted they will still be subject to the state’s existing bar Senate Bill 8, which outlaws the procedure after a fetal heartbeat is detected, typically around six weeks of gestation.

Texas has a so-called trigger ban – passed last year along party lines by the Republican-controlled Legislature – that will prohibit all abortions except when the pregnancy puts the mother at risk of death or severe health complications but that won’t take effect until 30 days after the Supreme Court issues its judgment in Dobbs.

Supreme Court opinions are not the final word in cases. Litigants who lose at the high court can file motions for reconsideration and only after it disposes of those motions does it issue its judgment.

The Texas trigger ban is expected to take effect in late August or later.

Texas Attorney General Ken Paxton on June 24 declared the day an annual holiday for his office “in honor of the nearly 70 million unborn babies killed in the womb since 1973” after the Supreme Court’s conservative judges issued their opinion overturning the constitutional right to abortion established nearly 50 years ago in Roe.

But abortion-rights advocates say he jumped the gun with an advisory opinion telling prosecutors that thanks to Dobbs they can immediately begin pressing charges against providers who dare perform the procedure, based on 1925 laws Paxton says remain on the books in Texas that banned abortions and providing the means to carry one out under penalty of two to five years in prison.

Although Texas removed those provisions from its statutes after Roe, and a Fifth Circuit panel unanimously ruled in 2004 they had been repealed by implication through Texas passing new statutes authorizing licensure of abortion clinics, Texas Assistant Attorney General Charles Eldred argued in Tuesday’s hearing they were never actually repealed.

“Judicial action cannot take it off the books,” he said.

Judge Weems drilled down into his logic. “So are you saying if the Supreme Court makes a determination a law is unconstitutional, for it not to be enforced the Legislature would have to affirmatively go in and repeal the statute?” she asked.

“Judicial power does not include power to repeal statutes,” Eldred replied. “You can declare they violate the Constitution. … We always say courts struck down statutes. That’s not quite true. It just means it can’t be enforced. For it to go away, the Legislature has to take it away.”

In addition to AG Paxton, a Republican, the abortion providers sued the entities that regulate the licenses of doctors, nurses and pharmacists – the Texas Medical Board, the Texas Board of Nursing and the Texas Board of Pharmacy.

They also named as defendants the district attorneys of counties where they operate clinics and surgical centers: Travis (seat Austin), Bexar (San Antonio), Harris (Houston), Dallas (Dallas), Tarrant (Fort Worth), Hidalgo (Edinburg) and Collin (McKinney).

Hearron, the providers’ lawyer, noted that the Texas District and County Attorneys Association stated in a legislative update in response to the Dobbs decision that the Legislature had muddied the waters with passage last year of the abortion trigger ban and Senate Bill 8 by inserting language that the 1925 laws had never been repealed.

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That confusion was heightened, Hearron said, when the Texas Legislature, with no notice, posted a new version of the state’s civil statutes on its website containing the text of the pre-Roe ban, replacing a version that did not include it, but with a caveat it had been impliedly repealed by the Fifth Circuit in 2004.

Hearron argued due process rights enshrined in the 14th Amendment are violated if a law invites arbitrary enforcement by prosecutors.

He asked Weems to put herself in the shoes of Texas abortion providers. In light of Dobbs, they are trying to reorder their lives and businesses.

“They are saying, ‘I only have to worry about the trigger ban.’ And I have to tell them, ‘Wait, there’s a possibility these pre-Roe bans may boom, suddenly reappear.’ That goes against due process,” he said.

Eldred, the state’s attorney, tried to get the lawsuit dismissed by arguing the abortion providers, which are all nonprofit organizations, are not subject to the pre-Roe ban because it applies to people, not entities. He said criminal charges can be brought against people and their medical licenses can be revoked, not organizations.

Weems rejected that argument as the providers sued on behalf of themselves, their staffs, physicians, nurses, pharmacists and patients.

The judge granted the providers a two-week temporary restraining order blocking prosecutions under the state’s pre­-Roe ban and set a temporary injunction hearing for July 12. It will be held before Harris County District Court Judge Cory Sepolio, also a Democrat.

Harris County Attorney Christian Menefee, another Democrat, blasted Paxton after the hearing for not being satisfied with the impending near-total ban on abortion in Texas triggered by Dobbs.

“It’s a sad day in Texas when even after the Dobbs decision comes out restricting reproductive rights of women, we still have folks who are looking to push even further and try to limit their ability to get reproductive care,” he said.

While pleased with the victory, Hearron acknowledged after the hearing the reality that abortion is on its way out in Texas.

And the new regime will drastically increase the penalties for anyone convicted of performing or attempting an abortion, raising the punishment to a first-degree felony punishable by five years to life in prison if "an unborn child dies as a result of the offense." They can also be fined up to $100,000 and have their medical license revoked.

“We all understand that the trigger ban that Texas enacted just last year will take effect,” Hearron said. “It will take effect probably in a couple of months, it could be longer than that. It depends on exactly when the Supreme Court issues its [final judgment] in Dobbs. And so we understand that abortion at some point will be nearly completely banned across the state of Texas. But that day is not today.”

He also noted that for 10 months, SB 8, known as the “heartbeat bill,” has been on the books in Texas, barring abortions after around six weeks into a pregnancy.

It relies on a novel scheme shifting enforcement to private citizens of any state, allowing them to sue Texas providers, and anyone who aids and abets a prohibited abortion in the state, for at least $10,000.

The Supreme Court’s refusal to block SB8 was seen by legal observers as a signal its conservative majority, three of whom were appointed by Donald Trump and said in confirmation hearings they would respect Roe as settled precedent, was ready to overturn Roe.

“So we’re still talking about a short window of abortions and many Texans are still going to have to flee the state trying to find an appointment in other states where abortion is not illegal,” Hearron added.

Asked if the temporary restraining order means Texas abortion providers who shut down due to Dobbs will reopen, he said, “I expect we’ll see some clinics that will evaluate this order and decide to restart providing abortions, before that six weeks. It’s going to be clinic by clinic, what they decide to do. But I expect we’ll see some clinics reopen their doors.”

The providers are also represented by the American Civil Liberties Union of Texas.

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