Local efforts to decriminalize abortion in Texas likely won’t help clinics stay open

Demonstrators gather in front of the federal courthouse in Houston to protest the Supreme Court's decision to overturn Roe v. Wade on Friday. (Credit: Briana Vargas for The Texas Tribune)

Some local Texas officials are taking steps to guarantee that abortion seekers and providers in their communities won’t face criminal charges in the wake of the overturn of Roe v. Wade, but legal experts say these initiatives are unlikely to meaningfully change the landscape of abortion access in the state.

Since Friday’s ruling, the state’s abortion clinics have stopped performing the procedure. Abortion funds, which help pay for procedures out of state, have halted their work fearing legal repercussions.

Texas lawmakers passed a law last year that would ban abortions, with narrow exceptions, if the Supreme Court overturned Roe. The law criminalizes the person who performs the abortion, not the person who undergoes the procedure.

The law will go into effect 30 days after a formal judgment from the court; however, Attorney General Ken Paxton issued an advisory on Friday indicating that prosecutors could bring abortion-related charges immediately under the state’s pre-Roe statutes.

Five Texas district attorneys announced Friday they would not prosecute abortion-related crimes. Meanwhile, the Austin City Council is proposing a measure that would direct police to de-prioritize investigating allegations of illegal abortions.

But even if criminal charges are off the table in those jurisdictions, local policies “do not and cannot restore the access to reproductive freedom that has been lost,” said South Texas College of Law professor Charles “Rocky” Rhodes.

“The difficulty is that clinics won’t provide abortion services, even if abortion-related crimes are not investigated or prosecuted locally,” Rhodes said in an email. “The doctors and the facilities are likely to face state licensure and other administrative consequences even without a criminal prosecution.”

But, Rhodes said, these declarations are not entirely symbolic. They make an important statement about local officials’ priorities and can serve to reduce fear among health care providers and people seeking abortion-inducing medication outside the traditional health care system.

Local initiatives

That was the idea behind the Guarding the Right to Abortion Care for Everyone Act, which Austin council members started discussing after a draft of the Supreme Court ruling overturning Roe v. Wade was leaked in early May.

“A lot of people were scared. There were a lot of people that were confused,” Austin Council Member Paige Ellis said. “There’s a lot of people that are looking to elected leaders to help and it’s on us to … make sure we can do something that benefits our constituents.”

The GRACE Act bans the use of city funds for investigating reports of abortion and directs the police to make abortion-related investigations their lowest priority.

Council members have called for a special meeting to consider the proposal the week of July 18.

“What the GRACE Act is aiming to do is obviously not supersede state law, because it can’t do that,” Ellis said. “But we can deprioritize the limited resources that we have as a city and within our police department.”

Elected district attorneys in Bexar, Dallas, Fort Bend, Nueces and Travis counties have made similar commitments to deprioritize abortion cases. Local prosecutors have wide discretion to decide which cases they pursue, and choosing to focus on abortion cases “makes a mockery of justice,” according to an open letter these prosecutors signed Friday.

“Our legislatures may decide to criminalize personal healthcare decisions, but we remain obligated to prosecute only those cases that serve the interests of justice and the people,” the letter said.

Additional penalties

But even if authorities won’t investigate those cases and prosecutors won’t pursue criminal charges, there are still significant civil penalties and administrative consequences associated with abortion in Texas.

The state’s trigger ban makes it a felony to perform an abortion except to save the life of the mother. But the law also requires the Texas attorney general to file a civil lawsuit against anyone who performs a prohibited abortion for “not less than $100,000 for each violation,” and revoke the license of any health care provider involved in the procedure.

“That's your entire livelihood. That's just not feasible for someone to do so,” said Liz Sepper, a law professor at the University of Texas at Austin. “A prosecutor saying that they won't prosecute is not going to keep clinics open. It's not going to allow doctors to perform abortions.”

The state is also still operating under a law known as Senate Bill 8, which empowers private citizens to bring civil lawsuits against anyone who “aids or abets” an abortion after about six weeks of pregnancy.

That law, the trigger law and many other Texas statutes specifically exempt patients who seek abortions from penalties, though the state’s pre-Roe statutes are less explicit, which some legal experts believe could leave the door open to criminal charges against people seeking an abortion.

And under the existing laws, friends, family members and anyone else who aids in a prohibited abortion could potentially be vulnerable to civil and administrative penalties, even if a prosecutor won’t bring criminal charges.

Republican lawmakers are already working to circumvent local efforts to turn a blind eye to abortion. They have discussed expanding the law that currently allows private lawsuits related to abortion after about six weeks of pregnancy to allow suits for abortions from the moment of fertilization. And state Rep. Briscoe Cain, R-Deer Park, has said he plans to propose legislation that would empower district attorneys to prosecute abortion-related crimes across the state, even when local authorities refuse to do so.

Sepper said that there are actions local municipalities can take to have an impact on reproductive rights, like increasing access to emergency contraception, funding travel out-of-state or helping strengthen the legal defense system for people who do face criminal charges, among others.

But meaningfully changing the abortion landscape may be beyond their purview.

“They have a limited ability to really respond,” she said. “Abortion has never been an issue that’s for municipalities to address.”

Disclosure: University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.