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removed those provisions from its statutes after Roe, and a Fifth Circuit panel unanimously ruled in 2004 they had been repealed by implication through Texas passing new statutes authorizing licensure of abortion clinics, Texas Assistant Attorney General Charles Eldred argued in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.