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What’s the status of Texas abortion law? What to know post-Roe v. Wade

We answer your questions about exceptions to the trigger law, ectopic pregnancies, miscarriages and more.

By Rylee Wilson

Abortion rights
Abortion rights supporters gather at the Dallas City Hall in downtown Dallas on Wednesday, June 29, 2022.(Lola Gomez / Staff Photographer)

With abortion laws in Texas about to change, The Dallas Morning News is answering your questions about what to expect without the protections established in Roe vs. Wade.

In 2021, the Texas Legislature passed a “trigger ban” on abortion that would take effect after the overturn of the 1973 case.

Until the ban officially starts 30 days after the court’s final judgment in the coming weeks, the legality of abortion in Texas is up in the air. Abortion providers won a court case allowing them to temporarily reopen, though Attorney General Ken Paxton plans to appeal and says they could be criminally liable because of pre-Roe laws still on the books.

Here are more answers to your questions about abortion laws in Texas.

Will the Legislature make it a felony for a woman to have an abortion?

The trigger law, House Bill 1280, does not contain criminal penalties for women who have abortions. It applies to anyone who provides or helps someone obtain an abortion. The penalty for providing an abortion would be a felony, and doctors who perform the procedure could face a lengthy jail sentence and $100,000 fine.

Though Texas law would not charge a woman who has an abortion with a crime, other states have proposed laws that would.

In May, Louisiana lawmakers proposed charging women who have an abortion with homicide. The bill was abruptly pulled from debate.

Seema Mohapatra, a professor of health law at Southern Methodist University, said nothing in the Supreme Court’s opinion in Dobbs vs. Jackson Women’s Health, the case that overturned Roe vs. Wade, would preclude a law that charges women who have an abortion with a crime.

“This seems to be within the line of the types of laws and restrictions that states like Texas are coming up with,” Mohapatra said. “I would not at all be surprised if that is one next step in terms of criminalizing this.”

Will Texas change the abortion law to make exceptions for life-threatening cases? How will this impact high-risk pregnancies when the mother’s life is at risk?

The state’s trigger ban prohibits all abortions, except for when a woman is at risk of death or serious injury resulting from a pregnancy.

Though exceptions for life-threatening cases are written into the law, it does not provide specific guidance on what conditions or situations would qualify as a risk of death or serious injury.

Mohapatra said because the law is vague, some physicians may be hesitant to provide an abortion in a medical emergency unless there is no fetal cardiac activity, to ensure they are not at risk of jail time or losing their medical licenses.

“You can see when someone’s self-interest is at play, about practicing medicine, about practicing their livelihood, these are the kinds of decisions that physicians are going to have to make on the ground,” Mohapatra said.

Will it be a crime to end an ectopic pregnancy?

An ectopic pregnancy occurs when a fertilized egg attaches outside of the uterus, most commonly in the fallopian tubes.

An ectopic pregnancy is never viable and life-threatening if left untreated, according to the American College of Obstetricians and Gynecologists. They must be treated with surgery or medication, which is different from mifepristone and misoprostol, the drugs used for medical abortions.

Texas’ trigger law says treatment for ectopic pregnancies and miscarriage are not considered abortion.

The College says abortion bans can lead to confusion and delays in care, even if they include exceptions for ectopic pregnancies.

“Health care professionals should never have to navigate vague legal or statutory language to determine whether the law allows them to exercise their professional judgment and provide evidence-based care,” College’s statement on ectopic pregnancies.

Mohapatra said Texas doctors could delay treatment for an ectopic pregnancy if there is fetal cardiac activity, out of worries of being prosecuted for performing an abortion.

“You can see that there might be a delay to ensure that this has to be done,” she said.

Will a miscarriage be subject to criminal investigation for possible voluntary or involuntary manslaughter?

The definition of abortion House Bill 1280 says treatment for a miscarriage is not considered an abortion.

Some reproductive justice advocates and health care providers have raised concerns that abortion bans could lead to difficulty treating miscarriages and increased scrutiny on women who have them.

Even before the ruling overturning Roe vs. Wade, some Texas doctors reported pharmacies refusing to stock misoprostol, a drug used to treat miscarriage and for elective abortions, for fear of facing criminal liability under Senate Bill 8. The Texas law prohibited almost all abortions after six weeks of pregnancy when it went into effect last year.

“The procedures and types of medications that we offer to treat a miscarriage are basically identical to those we use for abortion care,” said Stephanie Mischell, a family medicine provider in Dallas and a fellow with Physicians for Reproductive Health. “So bans on those specific things can end up impacting people who aren’t even seeking abortions.”

Some women have been investigated and charged with crimes for pregnancy loss even before the overturn of Roe vs. Wade. A 2019 policy brief from Kaiser Family Foundation found that women had been investigated for alleged self-managed abortions in 20 states, including Texas.

Women in the U.S. have been charged with crimes like feticide and manslaughter for their actions during pregnancy, including experiencing physical trauma, declining medical advice and using drugs.

In April, a Rio Grande Valley woman was charged with homicide for an alleged self-induced abortion. The charges were quickly dropped.

If I go to another state for an abortion, can I be prosecuted in Texas?

As of now, Texans cannot be prosecuted for traveling to another state to receive an abortion.

Supreme Court Justice Brett Kavanaugh weighed in on this question, writing in his concurring opinion to the Dobbs ruling that he believes it would be unconstitutional to prevent women from traveling to states where abortion is legal.

Some states have attempted to pass laws prohibiting out-of-state travel to receive abortions, though. In March, Missouri lawmakers proposed legislation that would allow private citizens to sue anyone who helps a Missouri resident get an abortion, including out-of-state physicians.

Mohapatra said whether or not this kind of law could be enforced is an unanswered legal question.

“If some of these kinds of laws are enacted, whether they would be upheld and whether they would withstand legal scrutiny is really up in the air,” Mohapatra said.

CORRECTION, 4 p.m. July 1: An earlier version of this story said that the state’s abortion ban trigger law did not mention ectopic pregnancies and miscarriage. The law says ectopic pregnancies and miscarriage are not considered to be abortion.

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