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Texas Supreme Court Correctly Decided that Texas Pre-Roe Statues Can Immediately Save Lives
Mary Elizabeth Castle, J.D.
Senior Policy Advisor
Texas Values | 18 July 2022
On June 24, 2022, the United States Supreme Court made one of the most historic moves of the 21st century in the Dobbs v. Jackson case by reversing the disastrous 1973 court decision of Roe v. Wade (a case that originated in Texas) that had propagated abortion clinics and a pro death culture for half a century. While our nation’s court officially took steps to make America a more prolife nation by leaving the issue of abortion to the states, the abortion industry in Texas refused to give up without a fight. Four days after the United States Supreme Court made the historic decision to overturn Roe v. Wade, the Texas abortion entity Whole Women’s Health filed a lawsuit in court in order to stop the Texas pre-Roe statutes, which made abortion a crime, from going into effect. Similar to the legal battle waged against the Texas Heartbeat Law last year, the prolife movement was victorious. But the law is very nuanced and the lawsuit filed by the abortion industry helped serve as a teaching moment on where Texas is headed after the Dobbs v. Jackson decision. In the confusion of having the Texas Heartbeat Law already saving lives, 19th and 20th century legal precedent holding abortion is a crime in Texas, and the passage of the Human Life Protection Act, the Supreme Court’s final dismissal of the abortion industry’s suit served as reassurance that babies’ lives could be saved as soon as the Court ruled.
Texas is one of the few fortunate states that had prepared for the moment that Roe v. Wade would be overturned. Not only did Texas have laws on the books dating as early as 1854 on criminalizing abortion, but Texas passed the Human Life Protection Act in 2021 that would go into effect if Roe v. Wade were to be overturned by the U.S. Supreme Court. Not to mention, Texas had already saved close to 50,000 babies through the Texas Heartbeat Law that went into effect in September 2021.
Nevertheless, many Texans, even those in the prolife movement, desired clarity in how the law would protect babies’ lives in Texas after the Dobbs decision. On the day of the Dobbs decision, Attorney General Ken Paxton issued an advisory on where Texas stood in being able to enforce prolife laws that would outlaw abortion. First, Attorney General Paxton explained that the Human Life Protection Act would not go into effect immediately. While most understood that the law would go into effect 30 days after the overturning of Roe, many did not know the nuances of the law going into effect. Paxton explained that the Human Life Protection Act would go into effect 30 days after a “judgement” was made and not 30 days after an opinion was issued at the Supreme Court. However, Paxton did reassure that prosecutors could immediately pursue criminal prosecutions based on abortion prohibitions that have never been repealed by the Texas legislature.
The law Paxton was referring to in his legal advisory is an 1854 statute that criminalized abortion in Texas even before Texas had codified its first criminal code of existing laws in 1856. Most scholars predate Texas criminalization of abortion to 1925 when the Texas legislature recompiled the Texas Penal Code. But even in 1908, Texas courts had their first test of the strength of their abortion laws during the infamous case of Jackson v. State, 55 Tex. Crim. 79 (1908) when Dr. Jackson violated article 641 of the existing Texas Penal code by performing an abortion on a woman in Cleburne, Texas, which resulted in her death. In his defense of his murder conviction on appeal, Dr. Jackson pled that the abortion statute was “unconstitutional and void in that it does not sufficiently define or describe the offense of abortion”. The highest court in Texas criminal law did not agree with this claim. Thus, it was decided over 100 years ago that the Texas criminal statute on abortion was sound law.
More notable than the early court victories for Texas criminalization of abortion is the fact that the pre-Roe statute was never repealed by the Texas legislature. Abortion providers seemed to understand this when they began shutting down their clinics in Texas on the day of the Dobbs decision. However, the lawsuit filed by Whole Women’s Health presumed a different theory. The abortion industry claimed that the pre-Roe statute had been repealed expressly or by implication. Both of these theories are shaky.
Regarding the express repeal, the abortion industry claims that the pre-Roe statute appears to be missing in the new Penal Code that was enacted in May of 1973, a few months after Roe was decided in January. But even they admit that the pre-Roe statute was available in the Vernon Texas Civil Statutes in 1974. Regardless of the fact of whether the statute was truly deleted, missing, or misplaced in the wrong code, the abortion industry is missing one key common understanding of Texas law - laws in Texas can only be repealed by the Texas legislature. The abortion industry cannot point to any legislative vote or law where the pre-Roe statute was repealed. Any lawyer or person familiar with the Texas legislature should know that the legislature has the power to repeal laws as attempts are made every session to repeal Texas’ sodomy laws and gay panic defense laws. But in the past couple of sessions there have been no known attempts to repeal the pre-Roe statutes on abortion.
The abortion industry also argues that the pre-Roe statute was repealed by implication. Apparently, a 5th Circuit Court of Appeals case from 2004 stated that abortion regulations could not be “harmonized with provisions that purport to criminalize abortion.” This argument is irrelevant because the legislature repeals laws, not the 5th Circuit Court of Appeals.
The abortion industry made a few more legal arguments in their suit, but their initial victory was more of a knee-jerk, pro-abortion advocacy reaction than it was an answer to what was legally correct. Shortly after the suit was filed, a Houston area judge granted a stay on the enforcement of the pre-Roe statutes. Thankfully, Texas Attorney General Paxton made an emergency request to the Texas Supreme Court which was answered with a dismissal. After facing legal defeat one last time, Whole Women’s Health announced on Wednesday July 6, that they were leaving the state of Texas and moving all of their locations to New Mexico. For a business that claims to be about “whole women’s health,” it appears their business model relied on abortion and pro-abortion litigation. Thankfully, Texas laws are the real definition of protecting “health,” for the born or unborn.
 Attorney General Ken Paxton, Advisory on Law Upon Reversal of Roe v. Wade, (June 24, 2022) https://www.texasattorneygeneral.gov/sites/default/files/images/executive-management/Post-Roe%20Advisory.pdf
 Roe v. Wade, 410 US 113, 119 (1973).
 Texas State Law Library, About the Printed Statutes, https://www.sll.texas.gov/library-resources/collections/historical-texas-statutes/
 Jackson v. State, 55 Tex. Crim. 79 (1908).
 Jackson v. State at 90.
 Erin Douglas, Abortions in Texas have stopped after Attorney General Ken Paxton said pre-Roe bans could be in effect, clinics say (June 24, 2022), https://www.texastribune.org/2022/06/24/texas-clinics-abortions-whole-womans-health/
 Whole Women’s Health v. Paxton, No. 38397 (SD of Tex. June 27, 2022).
 Id. at 14.
 Id. at 15.
 Whole Women’s Health v. Paxton at 14.