Constitutional Law Expert Calls Enforcement of New Abortion Law ‘Complicated'

The level of enforcement will vary county to county, and in the case of home rule cities, city to city, expert says

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To know what the future will look like under a Texas law criminalizing abortion, appellate attorney David Coale suggests looking back about two years.

"One thing we learned in the pandemic was that there was a lot more to Texas government than we thought there was," said Coale.

During that time, Republican Gov. Greg Abbott signed a lot of executive orders that were challenged at multiple levels.

"There were mayors, there were county judges, there were superintendents of school districts. And it turned out upon some scrutiny and some litigation, they all have some governmental power,” he said. "And so we now find ourselves with the pandemic largely behind us, at least the litigation part of it, and we have this new state criminal law coming into effect that says you cannot assist people in getting abortions. But the question of how exactly you go about enforcing that is well, more complicated than it may seem."

Especially, he said, for a Supreme Court decision meant to give power to the “people’s elected officials."

Though Attorney General Ken Paxton has said he'll "work tirelessly to ensure our laws are fully enforced," the decision to prosecute abortion cases rests with each county's district attorney. Some, like Dallas County’s John Creuzot, have already pledged not to pursue cases.

Just like in the time of mask mandates and COVID restrictions, Coale said that means the level of enforcement will vary county to county, and in the case of home rule cities, city to city.

“A city like Denton doesn't have the ability to say that the state laws don’t apply here. They obviously do. They’re in Texas,” said Coale. “But they can say, we're going to do certain things to fill in gaps in the law, facilitate people's actions, so they aren't going to violate the law, encourage people to go to other states to engage in activity that would be criminal here but isn't criminal there, and that's something that they've got some latitude to do."

Coale said that doesn’t mean there won’t be lawsuits challenging such decisions. Still, in the wake of a pandemic that he says proved Austin doesn’t hold all the power, he said the legal community is prepared to ask more questions about how the new law should play out.

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