On Friday, the Supreme Court made official what observers have been anticipating since a draft of the court’s opinion in Dobbs v. Jackson Women’s Health Organization leaked in early May: Roe v. Wade, the landmark 1973 case from Texas—which determined that the Fourteenth Amendment’s right to privacy guaranteed the right to obtain an abortion—has been overturned.
The implications of this ruling could be sweeping. The extent of the impact they’ll have on American lives remains to be determined—the same right to privacy cited in the Roe decision is also the basis for rulings such as Griswold v. Connecticut (which guaranteed the right to contraception for married couples) and Lawrence v. Texas (which guaranteed the right of adults to perform consensual sex acts in their own homes). The court’s opinion in Dobbs doesn’t overturn those rulings, but some legal observers believe that the court’s reasoning could invite some states to restrict contraception, gay marriage, and other sexual freedoms.
For those seeking abortions, however, today’s ruling is a dramatic change from the status quo. Here’s what’s changed, and what will continue to change, for Texans.
What changes today
The overturning of Roe doesn’t mean that abortion is illegal across the country. Dobbs returns the issue to the states, which can place further restrictions—or ban the procedure outright. In thirteen states, including Texas, new bills don’t need to be drafted, debated, and voted on, because the states have passed “trigger laws,” set to go into effect if and when Roe is no longer in place.
Texas’s trigger law, House Bill 1280, passed in the 2021 legislative session. But it doesn’t go into effect immediately—it begins thirty days after a judgment that overturns Roe. At this moment, Texans seeking abortions who are less than six weeks pregnant are still able to access them. (Senate Bill 8, a 2021 law that outlawed the procedure after cardiac activity is detected, typically at around six weeks’ gestation, and uses a civil “bounty” enforcement system to circumvent Roe, will also remain in effect.)
For those who might have planned to travel to Louisiana, whose trigger law has no waiting period, abortion is illegal there as of today. The same is true for those whose travel plans involved Kentucky or South Dakota, where trigger laws also go into effect immediately.
Shortly after the Dobbs opinion was published, Texas attorney general Ken Paxton released an advisory noting that because Texas had laws restricting abortion prior to Roe v. Wade that had been unenforceable while that ruling was in effect, “some prosecutors may choose to immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.” These laws were the basis for the original Roe v. Wade lawsuit, and differ from HB 1280: they include punishment for both the patient and the doctor, including a potential prison sentence of between two and five years. It is unclear whether a prosecution under those laws would succeed.
What changes in the next few days
Arkansas and Oklahoma have trigger laws that will go into effect upon certification by each state’s attorney general that Roe v. Wade has been overturned. This is likely to happen within the next few days, and could come within a few hours. The same situation holds in Mississippi and Missouri. North Dakota, Utah, and Wyoming require an additional step in the process for their trigger laws to go into effect, but little delay is expected.
Update 6/24/22 at 3:20 p.m.: Both Arkansas attorney general Leslie Rutledge and Oklahoma attorney general John O’Conner have certified that Roe v. Wade has been overturned, making abortion illegal in their states, except in life-threatening cases.
What changes in thirty days
HB 1280 goes into effect 30 days after a judgment that overturns Roe v. Wade. A judgment is different from an opinion, which is what the court issued on June 24. It could take as long as 25 days for the judgment to be issued—in rare circumstances (such as if the court chooses to consider a motion for a rehearing on Dobbs), it could take even longer.
When HB 1280 does go into effect, it will make successfully performing an abortion a first-degree felony. (Attempting an abortion that does not result in the termination of the pregnancy after that date is a second-degree felony.) Other first-degree felonies on the books in Texas include murder, aggravated robbery, and aggravated sexual assault; penalties range from five years to life in prison, plus a fine of $10,000. (Second-degree felonies include manslaughter and aggravated assault, and penalties for first-time offenders include two to twenty years in prison, as well as a $10,000 fine.)
HB 1280 punishes those who perform abortions but not those who obtain them. Texas law does not currently include criminal penalties for the patient who receives the abortion, but that doesn’t mean that Texans in that position are safe from prosecution. In March, a Brownsville woman faced murder charges after receiving medical care to treat complications from a self-managed abortion, which was induced by pills. Those charges were dropped after public outcry, but the incident suggests the possibility that zealous prosecutors might attempt to find charges to file against others.
HB 1280 contains no exceptions for rape or incest; it does allow for an exception in the event of a pregnancy that would kill the patient or result in severe injuries. But Texans in that position are likely to have a difficult time finding a local doctor trained and willing to perform the procedure once it becomes illegal under other circumstances.
Trigger laws in Idaho and Tennessee will go into effect thirty days after judgment as well.
What changes after that
Texas GOP lawmakers have indicated that they’re interested in pursuing further laws concerning abortion in the 2023 legislative session. State representative Briscoe Cain, a Republican from Deer Park, just east of Houston, has vowed to seek a law that would allow district attorneys anywhere in the state to prosecute abortion providers anywhere else in the state. Such a law would allow a DA in a conservative county to prosecute a provider in Travis County, home to Austin, where district attorney José Garza has promised not to file charges. (Garza is joined in this position by district attorneys in Bexar, Dallas, Fort Bend, and Nueces counties.) Cain has also proposed legislation that would criminalize abortion funds that raise money for Texans to obtain abortions in other states, and would prevent private companies that pay for abortion-related travel expenses for their Texas employees from doing business with the state or with local governments.
Cain is the most vocal Republican in the Legislature when it comes to specific policy proposals on abortion in the next session, but he’s not alone in considering it a priority. State senator Bryan Hughes, a Republican from Mineola, ninety miles east of Dallas, who authored SB 8, tweeted that “Texas will lead the way in a post-Roe world,” without giving further detail, and Lieutenant Governor Dan Patrick included “protecting the unborn” on his early list of 2023 policy goals.
As trigger laws go into effect around the country, Texans seeking surgical abortions will likely find themselves in either Kansas or New Mexico, the two nearest states where the procedure will remain legal—though both have a limited number of clinics, which is likely to make scheduling an appointment difficult. Kansas has four clinics, which currently serve 530,000 potential patients of reproductive age. Now the state’s clinics will be the nearest alternative for 7.7 million such patients, according to the Guttmacher Institute, a nonprofit group that researches reproductive health. New Mexico, which has seven clinics, will be the nearest option for 1.9 million potential patients, the vast majority of whom will be Texans.
What about abortion pills?
Medication abortions, which are nonsurgical and administered by taking a two-dose regimen of pills that terminate a pregnancy, are currently illegal in Texas after the seventh week of pregnancy; after HB 1280 goes into effect, medication abortions, which are currently the most common type of abortions in Texas, are included in the total ban on the procedure in the state.
As of last December, Texas law also forbids the shipment of pills that induce an abortion “by courier, delivery, or mail service.” It’s unclear how Texas officials plan to enforce this law, as many U.S. and international organizations offer the pills by mail, or whether those who seek care after a self-administered abortion could face criminal charges under HB 1280, depending on how the law is applied. The text of the law notes that “a pregnant female on whom an abortion is performed, induced, or attempted” is exempt from prosecution under the law, but it is less clear on how the law will be enforced when the person on whom the abortion is induced is also the one inducing it, or if prosecutors in some parts of the state will find creative charging mechanisms for patients whom the law is intended to shield from prosecution. (It is also possible that a future legislative session will change this provision in the law.)
Complications from self-managed abortions are rare. A study published this year in the medical journal The Lancet found that only 1 percent of more than 2,200 patients required additional treatment, which among this study’s participants meant either a blood transfusion, intravenous antibiotics, or both. Still, while 99 percent of patients who self-administer an abortion do not require additional treatment, patient advocates have expressed concern that the possibility of criminal prosecution may make the small number of those who do require follow-up treatment reluctant to pursue it. The lasting image of illegal abortion in Texas is likely to look like an envelope of pills, rather than a coat hanger—and the chief risk is likely to be of prosecution, not septic abortion.
Update 6/24/22: This story has been updated to include comments from Texas attorney general Ken Paxton.
CORRECTION: A previous version of this story incorrectly stated that HB 1280 would go into effect on July 24. The law will go into effect thirty days after a judgment overturns Roe v. Wade.