Texas Supreme Court greenlights enforcement of 1925 abortion ban

In a move certain to enrage activists and others on the left, the Texas Supreme Court on Friday unfroze a 1925 statute banning abortion outright, reversing a lower court decision that had temporarily blocked its enforcement, as the New York Times reports.

The ruling represents the latest development in a host of legal battles heating up nationwide in the aftermath of the U.S. Supreme Court’s decision to overturn the pivotal 1973 result in the case of Roe v. Wade, which notoriously created a federal right to abortion.

Ban reinstated – for now

As Law & Crime explains, the state high court’s decision amounts to a temporary order, rather than a ruling on the merits of the parties’ arguments, and it has the effect of lifting an interim restraining order issued by a lower court in late June.

Accordingly, a statute passed in 1925, decades before Roe became the law of the land, which imposed a ban on abortions and provided for penalties for anyone performing them is now enforceable in the Lone Star state – at least for the time being.

Reacting to the Texas Supreme Court’s decision was the state’s Republican attorney general, Ken Paxton, who declared on Twitter that the outcome was a “[p]ro-life victory,” adding, “SCOTX has slapped down the abortion providers and the district court carrying their water. Our state’s pre-Roe statutes banning abortion in Texas are 100% good law.”

Referencing the temporary nature of the move, Paxton assured conservative supporters, “Litigation continues, but I’ll keep winning for Texas’s unborn babies.”

As the Times noted, both parties to the action are poised to argue their positions on the 1925 statute on July 12 in the district court which initially stopped its enforcement, and though the state Supreme Court’s ruling did reinstate the ban on abortions in the interim, it did not extend to permitting criminal penalties for those who violate it, and providers who violate the prohibition will be vulnerable only to fines and lawsuits.

Setback for the left

As the Austin American-Statesman noted, the Texas high court’s ruling represents a serious setback for abortion providers as well as those seeking the procedure in the state, and though this court battle in this instance will not determine whether abortion will be legal there on a long-term basis, it does have implications for whether procedures can continue to be performed prior to the effective date of so-called trigger law already passed in anticipation of Roe’s reversal.

That particular law, enacted in 2021, is slated to become effective 30 days after the U.S. Supreme Court’s decision overturning Roe is formalized in legal documentation from the panel, something that can take multiple months following the public issuance of the opinion.

As Marc Hearron of the Center for Reproductive Rights explained to the Statesman, “Texas’s trigger ban is not scheduled to take effect for another two months, if not longer. This law from nearly one hundred years ago is banning essential health care prematurely, despite clearly being long repealed,” echoing arguments made in the current litigation suggesting that Roe itself had already served as an effective nullification of the statute.

Battle shifts to states

Now that the highest court in the land has rendered its ruling and reversed Roe, a number of states have become ground zero in the fight between pro-life and pro-abortion advocates, with such groups now doing battle over trigger bans in Utah, Kentucky, Florida, and Louisiana, jurisdictions in which such provisions have already been blocked or delayed, at least on a temporary basis.

Though the U.S. Supreme Court’s decision to send the issue of abortion regulation back to the individual states has been heralded by conservatives everywhere as a watershed moment in American jurisprudence, it is increasingly clear that in many parts of the country, the contentious issue of what, if any, restrictions should be imposed on this profoundly controversial procedure is not going away anytime soon.

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