Texas

Hostile

Summary

If Roe is weakened or overturned:

Texas will likely try to prohibit abortion. Currently, medically unnecessary restrictions make it difficult for people to access abortion care in Texas.

Primary Content

Restrictions

Texas law generally prohibits abortion at twenty weeks post-fertilization and during the third trimester.1 It also prohibits D&X and D&E procedures,2 although the D&E ban was held unconstitutional.3 Pregnant people who seek abortion care must undergo a mandatory twenty-four-hour waiting period, biased counseling, and an ultrasound.4 Texas also limits public funding for,5 and private insurance coverage of, abortion.6 Texas law generally requires that a parent or legal guardian be notified prior to a minor’s abortion7 and consent to it.8 Alternatively, a judge can approve a minor’s petition.9

Texas’s targeted regulation of abortion providers (TRAP) laws include requirements related to facilities10 and reporting11 as well as unconstitutional requirements that have not been repealed.12 TRAP regulations have forced multiple clinics to close.13 Texas law restricts the provision of abortion care to licensed physicians.14 Providers who violate Texas’s abortion restrictions may face civil and criminal penalties.15

Protections

Texas law does not include express constitutional or statutory protections for abortion. To the contrary, Texas’s law defines “individual” as including “an unborn child at every state of gestation from fertilization until birth.”16

Laws that could be enforced if Roe v. Wade is limited or overturned

Texas has a pre-Roe criminal ban that the Fifth Circuit held was repealed by implication. 17

Conclusion

If Roe v. Wade is limited or overturned, it is likely that Texas will enact legislation to prohibit abortion entirely.

  • 1. TEX. HEALTH & SAFETY CODE § 171.044; id. § 170.002(a).
  • 2. Id. § 171.102(a); id. § 171.152(a).
  • 3. Whole Women’s Health v. Paxton, 280 F. Supp. 3d 938, 940 (W.D. Tex. 2017), appeal docketed, No. 17-51060 (5th Cir. Jan. 16, 2018), held in abeyance by Doc. 514871170 (5th Cir. Mar. 13, 2019).
  • 4. TEX. HEALTH & SAFETY CODE § 171.011; id. § 171.012.
  • 5. TEX. ADMIN. CODE § 354.1167.
  • 6. TEX. INS. CODE § 1218.003; id. § 1218.004.
  • 7. TEX. FAM. CODE § 33.002
  • 8. Id. § 33.0021; TEX. OCC. CODE § 164.052.
  • 9. TEX. FAM. CODE § 33.003.
  • 10. TEX. HEALTH & SAFETY CODE § 171.002; 25 TEX. ADMIN. CODE § 139.32; 25 TEX. ADMIN. CODE § 139.48.
  • 11. TEX. HEALTH & SAFETY CODE § 245.011(a); 25 TEX. ADMIN. CODE §§ 139.4, 139.5.
  • 12. TEX. HEALTH & SAFETY CODE §§ 245.010(a), § 171.0031 (held unconstitutional by Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
  • 13. Alexa Ura, Ryan Murphy, Annie Daniel & Lindsay Carbonell, Here Are the Texas Abortion Clinics That Have Closed Since 2013, THE TEXAS TRIBUNE (June 28, 2016), https://www.texastribune.org/2016/06/28/texas-abortion-clinics-have-closed-hb2-passed-2013/.
  • 14. TEX. HEALTH & SAFETY CODE § 171.003.
  • 15. See, e.g., id. § 171.104; id. § 171.018.
  • 16. TEX. CIV. PRAC. & REM. CODE § 71.001.
  • 17. McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (“The Texas statutes that criminalized abortion (former Penal Code Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in [Roe v. Wade, 410 U.S. 113 (1973),] have, at least, been repealed by implication.”).