Saturday, September 24

Texans, brace for surveillance and criminal charges after abortion ruling

Until Friday, abortion was a constitutional right. Then, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court took it away. Americans everywhere have been left wondering what the overturning of Roe v. Wade will mean for them.

The basic takeaway is clear: Without Roe, people in nearly half the states will lose abortion access almost overnight. Abortion facilities will close, and a vast expanse of abortion deserts will form throughout the South, Midwest and Mountain states. And abortion will soon become a crime.

What does this mean for Texans — for the people who seek abortion, for friends and family supporting them, and for health care providers? As law and policy scholars, we have looked at the current statutes and the history of enforcement to provide some idea of ​​what may happen. Here are five things Texans should expect when abortion becomes banned.

Texas’ ‘trigger’ ban targets health care

The first thing for Texans to understand is the slate of laws that will soon criminalize abortion with no exemption for rape or incest. As in 12 other states, Texas has a “trigger” ban on abortions at any stage of pregnancy. The law, passed in 2021, is officially known as the “Human Life Protection Act.” Texas’ law springs into effect 30 days after the Supreme Court issues a judgment overturning Roe, which should come within a few weeks of Friday’s opinion in Dobbs. Anyone who performs or induces an abortion on a pregnant person risks becoming a felon. Even if a county prosecutor does not go after a doctor or nurse, the state attorney general may seek civil fines of no less than $100,000 and the licensing organizations are required to strip them of their licenses.

And once abortion becomes illegal, prosecutors can also use other criminal laws. For example, Texas’ homicide statute extends to causing the death of “an unborn child at every stage of gestation from fertilization until birth.” Legal abortions — including dispensing drugs that cause abortion — had been exempted from its reach. But when virtually all abortions are illegal, potential homicide charges could be brought against anyone who provides abortion pills or performs an abortion or even helps a pregnant person trying to get one.

Attorney General Ken Paxton and others argue that Texas’s abortion laws that the Supreme Court struck down in 1973 are still on the books and apply immediately. These provisions reached both performing an abortion and furnishing the means for an abortion — and so could be used against people who help a pregnant person access abortion. But their status is contested. In 2004, a federal appeal court held that these older abortion bans had been appealed. So, although an enterprising prosecutor might bring charges under the pre-Roe law, they would rest on shaky legal ground.

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Pregnant people may face criminal charges

Before Roe v. Wade was decided in 1973, criminal laws in Texas and other states tightly restricted abortion. Americans still managed to end their pregnancies, often relying on back alley abortions or the notorious coat hanger. These procedures were risky, and every major hospital had a “septic abortion ward” for patients suffering infections from illegal abortion. Criminal charges against the pregnant person were rare, but not unheard of.

Despite this, anti-abortion activists often downplay concerns about criminalization of women. And while it’s true that our state’s abortion-specific criminal laws expressly exempt pregnant people who have had an abortion, other laws could be invoked.

Even before Dobbs, prosecutors brought criminal charges against women who had miscarriages or stillbirths. In other states, women have been accused of child endangerment or distribution of drugs to a minor. This year, an Oklahoma woman was convicted of a manslaughter and sentenced to four years in prison after suffering a miscarriage at 15 to 17 weeks pregnant, well before fetal viability. Prosecutors argued the miscarriage stemmed from her use of methamphetamine. And despite there not being a law that prohibits someone from ending their own pregnancy, Texas recently arrested and jailed a South Texas woman, Lizelle Herrera, for just this reason, and the charges were only dropped after a national outcry.

Medicated abortions are banned but detection will be difficult

Today too, criminal law will not stop people from getting abortions. 2022 is not 1972. Coat hangers will likely be a thing of the past. Today, people early in their pregnancy can safely self-manage their abortion by obtaining medication abortion pills online or from Mexico. And in the face of increasing abortion restrictions, many Texans have already done so.

Last year, the Legislature also specifically criminalized providing medication to induce abortion after seven weeks of pregnancy and the trigger law will ban them at conception. Sending abortion pills through the mail or delivering them to Texas residents is now a crime. Detecting these crimes will be difficult, however.

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Still, friends, partners, and family may face jail time for helping a pregnant person access abortion—as Texans did before Roe. Once abortion is a crime, conspiracy charges could be brought. These laws are exceptionally broad. Conspiracy could apply if a group of friends agrees to help a pregnant friend find abortion pills in the state, and one makes an appointment for her. Even if no abortion occurs, they might be charged with conspiracy to commit a felony. Civil liability is also a serious risk. Under Texas’s Senate Bill 8, also called the Texas Heartbeat Act, civil lawsuits can be filed against people suspected of “aiding and abetting” an abortion in Texas after cardiac activity can be detected. And any neighbor, acquaintance, or family member can file suit.

Phones and new frontiers in enforcement

People are vulnerable to prosecution in 2022 that would have been unimaginable 50 years ago. Criminal law enforcement is much more powerful than it was then. The state can engage in electronic surveillance. Many people use apps to track their menstrual cycles that could now serve as evidence of pregnancy and its termination. Most of us carry around cell phones that record our movements, our searches and our communications — leaving evidence that could later be used to investigate or prosecute someone who mailed medication abortion across state lines or helped another person look for where to get an abortion. Black, Latino and immigrant communities, which are already heavily policed, will bear the brunt of enforcement.

Today’s criminal laws also carry much steeper penalties. People breaking the pre-Roe abortion ban faced two to five years in prison. In 2022, the trigger ban imposes five years to life in prison. Under the homicide law, capital punishment could even apply.

Criminalizing abortion will ripple across health care

There is no exemption in Texas’ abortion bans for severe or life-limiting fetal anomalies. After a diagnosis of, for example, anencephaly that involves incomplete development of the brain and is not compatible with life, a person will have to continue the pregnancy, labor and deliver-unless they can leave the state.

Criminalizing abortion will not only affect people who want to end their pregnancy. It will ripple across pregnancy care. People experiencing serious pregnancy complications or miscarriage will find physicians worried about the prospects of committing a crime and unwilling to treat them.

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Texas does allow abortion if a physician documents that there is a medical emergency and that the pregnant person is in danger of death without an abortion. And some ectopic pregnancies and miscarriages where there is no longer cardiac activity can be treated.

Faced with the risk of criminal prosecution, however, physicians may be unwilling to provide care until the pregnancy becomes life-threatening or fetal cardiac activity can no longer be detected. This means that people with serious pregnancy complications, such as rupture of membranes or preeclampsia may have to wait until their life is at stake — unless they can travel to another state. Physicians may hesitate until their patients show signs of sepsis, start hemorrhaging or experience dangerous seizures. These delays will increase maternal morbidity and mortality rates and exacerbate existing racial disparities.

Our research at the Texas Policy Evaluation project has also shown that physicians and hospitals disagree over what amounts to “enough risk” of death for someone to get an abortion. Some physicians, knowing the inevitable outcome of a pregnancy-related complication, have been willing to provide an abortion. Others have seen patients with heart problems made worse by pregnancy who had to wait until they were admitted to the intensive care unit before a physician would perform an abortion. As one maternal-fetal medicine specialist told researchers, “People have to be on death’s door to qualify.”

A new phase in the legal battle over abortion

The Supreme Court stripped Americans of a fundamental constitutional right. But it did not end abortion or remove the courts from the abortion debate. It instead paved the way for intense monitoring of people’s pregnancies and pregnancy outcomes that further compromises rights to bodily autonomy and equality. And it opened the door to a wave of criminal allegations. With Dobbs, the legal battle over abortion has entered a new phase, and few will be left unaffected.

Elizabeth Sepper is a law professor at the University of Texas at Austin. Kari White is also at UT, where she is an associate professor at the Steve Hicks School of Social Work and the lead investigator of the Texas Policy Evaluation Project.

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