By Allie Morris
AUSTIN — North Texas prosecutors are divided over how to apply a new law that criminalizes abortion, setting the stage for a patchwork of enforcement that varies by county.
While Dallas County District Attorney John Creuzot vowed not to bring charges under the abortion ban, prosecutors in neighboring Denton and Tarrant Counties said they will handle the cases like any other felony. Collin County did not respond to requests for comment.
Abortions are already effectively outlawed in Texas, where clinics closed after the U.S. Supreme Court decision overturning Roe vs. Wade. But a new law takes effect Thursday that makes performing the procedure a felony, punishable by up to life in prison and fines of at least $100,000. There are no exemptions for rape, incest or fetal anomaly — only for when the pregnant person’s life is in danger.
It’s not clear how many prosecutions will materialize or even how police will handle complaints. But the first cases will test the bounds of a sweeping new law that is prompting fear and confusion for patients, their families and the medical community alike. Experts say the few abortions that do occur in Texas are now carried out in hospitals during emergencies or at home with medication obtained online or through other means. Pregnant women cannot be prosecuted.
“Are they going to be going after doctors who perform emergency abortions? What does that look like?” said Joanna Grossman, a professor at Southern Methodist University Dedman School of Law.
So far, Attorney General Ken Paxton has been the most bullish about enforcement. His office can only enforce the six-figure civil fines, but he offered to help local prosecutors bring criminal charges under the state’s abortion ban.
“I will do everything in my power to protect mothers, families, and unborn children, and to uphold the state laws duly enacted by the Texas Legislature,” Paxton, a Republican up for a third term in November, said in an advisory.
The Dallas Morning News contacted 15 counties across North Texas asking how they will handle the new law. Only a handful responded.
Creuzot and four other district attorneys from some of the state’s more populous counties said in a recent statement that they will refrain from prosecuting anyone who seeks, provides or supports an elective abortion.
“Prosecutors have a responsibility to refrain from using limited criminal legal system resources to criminalize personal medical decisions,” said the joint statement issued by elected prosecutors across the country.
In Tarrant and Denton County, officials said prosecutors will evaluate each case and present it to a grand jury only if the facts warrant prosecution. Neither office specified what circumstances might qualify.
“Prosecutors do not make the law — we follow it,” Tarrant County Criminal District Attorney Sharen Wilson said in a written statement. “We followed Roe v. Wade when it was the law and we will follow Texas state law now.”
“Police agencies bring us cases. We don’t go out and investigate cases ourselves,” said Denton County First Assistant District Attorney Jamie Beck. “If an agency brings us a case that deals with this issue and these laws, we will treat it like any other case.”
Yet, how the police will handle complaints remains a question mark.
Several police groups said they don’t know how enforcement will work, and one questioned whether law enforcement would want to be involved at all.
“They are extremely difficult investigations, and there’s all kinds of politics surrounding it,” said Kevin Lawrence, executive director of the Texas Municipal Police Association. “It’s a lot easier to say something is illegal than to actually prosecute someone for it.”
In Dallas, Police Chief Eddie García said that, depending on priority and call type, there will be instances “that we may have to respond and take a report.” But he echoed the uncertainty, saying it’s “too soon to tell how the state plans to enforce this new law and who will be enforcing it.”
While almost every felony complaint is looked into, final decisions about how to proceed rest with district attorneys, said James McLaughlin Jr., executive director and general council for the Texas Police Chiefs Association.
“What proof would they want to see in order to accept a case?” he said. “We’re pretty used to filing burglary cases, robbery cases, homicide cases, but this is different.”
Even if no charges are ever filed, the effects of an investigation can be profound, said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law.
“It is not pleasant to be interrogated by the police, to have your privacy invaded and so on,” Sepper said.
Conflicts with the law’s penalties could add another hurdle, legal experts said.
A decades-old abortion ban was recently revived following a Texas Supreme Court order, but the penalties conflict with the new law, raising questions about which statute may apply. The state’s abortion ban also raises double jeopardy issues because it allows for people to be criminally punished and forced to pay civil fines for the same offense, according to the Texas District and County Attorneys Association.
“The Legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion ‘trigger law’ crime if any of those civil fines are collected by the (attorney general),” an association blog post reads.