Still, abortion clinics around the state have already closed their doors, and Texas Attorney General Ken Paxton has said abortion is now unlawful in the Lone Star State, which appellate attorney David Coale said is based on a law dating back more than half a century.
“There are two potential sources of law by which abortion can become criminalized again after the Supreme Court's recent decision. The first is the trigger law, which says that it takes effect 30 days from something that is the issuance of the opinion or the judgment,” said Coale. “There is also an argument that the old Texas laws that were in place before Roe v. Wade, that were held unconstitutional, have sort of come back to life by operation of law, that Roe versus Wade simply held that those laws were unenforceable.”
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Still, he said there are questions about whether the state would actually prosecute with a new law set to take effect in one month’s time.
“If I was advising the Attorney General, I would say, ‘Hang on. What's the big rush? Wait for a few weeks and be sure of what you're doing.’ On the other hand, if I was advising an abortion clinic, I would say, ‘Look, they've got great legal arguments here, but I can't tell you that you're out of the clear on this, and you're not going to run some risk of being stuck in some criminal proceedings,” Coale said.
Coale said some have even floated the idea of now retroactively prosecuting abortions that happened while Roe was in effect, a period of time spanning nearly 50 years.
“That's a radical view that's outside the mainstream, but that argument is out there,” said Coale.
He believes these discussions are just the start of new legal challenges, not only involving abortion but also other past decisions the Supreme Court has suggested could now be at risk.
“It does introduce a new element into how we draft statutes that people just hadn't really thought about a lot before,” he said.
When it comes to abortion, Coale said it’s likely there will be litigation over the next several years involving travel and whether those who help others cross state lines in search of the procedure could face charges.