There are still weeks to go before a Texas law criminalizing abortion comes into force after the Supreme Court on Friday overturned Roe v.
However, statewide abortion clinics have already closed and Texas Attorney General Ken Paxton has said abortion is now illegal 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 possible sources of law by which abortion can be criminalized again after the recent Supreme Court decision. The first is the trigger law, which says it comes into force within 30 days of something that it’s the issuance of the opinion or the sentence, ”Coale said. “There is also an argument that the old Texas laws that were in place before Roe v. Wade, which were considered unconstitutional, have come back to life by operation of the law, which Roe v. Wade simply held to be unenforceable. . ”
Still, he said there are questions about whether the state would actually prosecute with a new law that will go into effect in a month.
“If I were advising the Attorney General, I would say,‘ Wait. What is the big rush? Wait a few weeks and be sure of what you do. On the other hand, if I were advising an abortion clinic, I would say, “Look, they have great legal arguments here, but I can’t tell you that you’re not clear on that, and you.” We will not run the risk of getting caught up in some criminal proceedings, ”Coale said.
Coale said some have even raised the idea of now retroactively prosecuting abortions that occurred while Roe was in force, a period of time spanning nearly 50 years.
“This is a radical view that is out of the mainstream, but that argument is out there,” Coale said.
He believes these discussions are just the beginning of new legal challenges, not only involving abortion, but also other past decisions that the Supreme Court has suggested could now be at risk.
“It introduces a new element in how we draft statutes that people hadn’t thought of long before,” he said.
As for abortion, Coale said there are likely to be litigations over the next few years that include travel and whether those who help others cross state borders in search of the procedure could face charges.