Texas Legislative Update

August 2022

THE DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION DECISION – OVERTURNING ROE v. WADE AND PROHIBITING ABORTION IN TEXAS

The recent US Supreme Court decision in the Dobbs case has been only one of the factors in the seismic shift in abortion laws in Texas in the last year. The court’s decision to allow states to regulate abortions in Texas has added emphasis to several laws passed during the state’s 2021 regular and special legislative sessions. This article is designed to provide a broad overview to the changes but is not exhaustive and should not be construed in any way as legal advice. The circumstances with ongoing legal actions, federal intervention and political considerations creates an environment of uncertainty this will likely continue to be fluid. Given the magnitude of change in laws and the potential impact on your practice, you should seek professional legal advice for any specific questions you may have regarding any information discussed here.

2021 TEXAS LEGISLATURE

The 2021 Texas Legislature was very active on the subject of abortion. HB 1280, the so called “trigger law” proactively prohibited the performance of an abortion if the US Supreme Court gave the responsibility back to the states, which is exactly what the Dobbs ruling achieved. HB 1280 goes into effect 30 days after any federal changes and is set to become law on August 25th, 2022. This new standard prohibits abortions with certain exceptions, creating felony criminal and civil penalties for violating the law. Any abortions performed under an exception, including a life-threatening condition, requires a licensed physician to perform the procedure and attempt to save the life of the fetus unless this would increase the risk to the mother.

Additionally, the legislature passed SB 4 which prohibits a person from providing an abortion inducing drug to a pregnant woman without satisfying the applicable informed consent requirements for abortions and to require a physician who provides such a drug to comply with the applicable physician reporting requirements regarding abortions. SB 4 creates a state jail felony offense for a person who intentionally, knowingly, or recklessly violates provisions relating to abortion-inducing drugs but exempts a pregnant woman on whom a drug-induced abortion is attempted, induced, or performed from criminal liability and establishes an administrative violation based on conduct constituting the offense.

Important for Emergency Medicine, SB 4 also amends current statute that require reporting of an “abortion complication” or an “adverse event” by any physician who diagnoses or treats a patient at any point in the future who has had an abortion and presents with one of the listed complications. Please contact TCEP if you would like to learn more about what these reportable complications and adverse events include. The 2021 legislature also passed SB 8, which prohibited abortions after the detection of a “fetal heartbeat”, usually within 6 weeks of pregnancy. SB 8 empowers any private citizen to file a civil suit against someone they claim has violated the law and allows for awards of a minimum of $10,000 plus attorney fees. An exception to the law exists only for a medical emergency. If an abortion is "performed or induced" because of a medical emergency, the law states that physicians must "execute a written document that certifies the abortion is necessary due to a medical emergency and specifies the woman ’s medical condition requiring the abortion." The physician must also maintain a copy "in the physician ’s practice records” and place it “in the pregnant woman’s medical record."

FINAL THOUGHTS

Since the Dobbs decision has triggered SB 1280 and an outright ban on abortions, it is unclear how SB 8 will be enforced. As mentioned, the uncertainty around the law in Texas will continue for some time and the likelihood of extensive challenges to implementation of the prohibitions should be expected. TCEP will continue to engage on the issue with policymakers and stakeholders as events continue to unfold to provide you with the most accurate information available on this contentious and complex issue.