Texas Law After Roe v. Wade: What You Should Know

January 1, 2022 | By Shane Phelps Law
Texas Law After Roe v. Wade: What You Should Know

Texas made headlines in 2021 with the announcement of a new law that would ban abortions after six weeks. Now, almost a year later, the Supreme Court has overturned Roe v. Wade. Now, Texas and other states are grappling with the future of reproductive law and what happens when a someone breaks the law. Keep reading for more information.

The Overturn of Roe v. Wade

On June 242022 the United States Supreme Court overturned the landmark Roe v. Wade decision from 1973. In the decision, Justice Samuel Alito stated that the original court decision was “an abuse of judicial authority” and unconstitutional. The decision to overturn Roe v. Wade was based on the idea that the federal government cannot control abortion access or reproduction – the power should go to the states.

While the tentative decision to overturn the precedent was leaked months ahead of the final decision, legal professionals, the news media, and the have been certain that the decision would be at the center of a nationwide legal battle to navigate a world without legal precedent.

What Is Precedent?

A legal precedent is a standard by which future cases are decided. Precedents are usually set after a major case in the Supreme Court. For example, Roe v. Wade set a precedent that states could not remove abortion rights without going against the constitution.

When a precedent is set, it becomes the measuring stick for similar cases, but it is important to recognize that precedents are not law. Roe v. Wade set a precedent, but it also was an established court case and amendment to the U.S. Constitution.

Federal Law

Moving forward, the federal government will be primarily responsible for upholding abortion rights. The Supreme Court’s decision has determined that the states will oversee making decisions regarding the availability of abortive procedures for residents.

The decision has effectively removed the federal government’s ability to pass abortion law of any kind. Instead, the Executive and Legislative branches must either circumvent a legal process called the filibuster or codifying Roe v. Wade.

  • filibuster is a delay or block on a vote for a particular piece of legislation.
  • To codify a law, the government must make it part of a systematic code that provides uniform source material and clarity for legislators and the public.

State Authority

States now have more power to issue abortion bans that are more restrictive than what Roe v. Wade would allow. For example, the original Texas abortion ban wad dubbed the heartbeat bill because it banned abortions after the fetus developed a heartbeat.

Many states have trigger laws on their books that laid out a groundwork for abortion bans in the event that the Supreme Court ever overturned Roe v. Wade. Now that the law is officially overturned, many of these states have enacted their bans and the trigger laws are in full effect.

States may also criminalize abortion. Texas has a trigger law that criminalizes abortion in all circumstances except when the performed to save the life of the mother. This means that practitioners who perform an abortion procedure are effectively breaking the law and will face legal consequences. In fact, those who break the law by aiding and abetting abortions could face felony charges.

Opposing Measures

Human rights organizations like the ACLU have filed suit against the state to pause and/or stop abortion bans in Texas. Currently there is one major suit in progress moving through the courts, but it has not reached a verdict. Other grassroots community efforts to support abortion rights are active, but the dust is not settled on abortion bans yet.

The state and federal government will continue to draft laws and issue regulations related to abortion over the coming months. So far, it is unclear how states will manage interstate travel between states with abortion access and those without but it is clear that there is a lot of work left to do.

Shane Phelps Law will continue to follow this case as it develops.