There are still weeks before a law enacting Texas that criminalizes abortion comes into force after the Supreme Court overturned Rowe against Wade on Friday.
However, abortion clinics in the state have already closed, and Texas Attorney General Ken Paxton says abortion is now banned in Lone Star State, which according to appeals attorney David Cole, is based on a law dating back more than half a century. .
“There are two potential sources of law according to which abortion can become criminalized again after the recent decision of the Supreme Court. The first is the trigger law, which says it takes effect 30 days from something that is the issuance of an opinion or decision, “said Cole. “There is also an argument that the old Texas laws that were in force before Rowe v. Wade, which were considered unconstitutional, have come back to life through the operation of the law that Rowe v. Wade simply ruled that these laws are not applicable. ”
However, he said there were questions about whether the state would actually prosecute with a new law, which should take effect in a month.
“If I had advised the Attorney General, I would have said, ‘Wait. What is the big rush? Wait a few weeks and make sure you do what you do. On the other hand, if I were advising an abortion clinic, I would say, “Look, they have great legal arguments here, but I can’t tell you that you don’t know that either.” I wouldn’t risk getting caught in some criminal proceedings. ” said Cole.
Cole said some have even come up with the idea now of retrospectively prosecuting abortions that occurred while Rowe was in power, a period spanning nearly 50 years.
“It’s a radical view that’s out of the mainstream, but that’s the argument,” Cole said.
He believes that these discussions are just the beginning of new legal challenges, not only related to abortion, but also other past decisions that the Supreme Court suggests may now be at risk.
“This introduces a new element in the way we draft a statute that people just haven’t thought about long before,” he said.
As for abortion, Cole said there are likely to be litigations over the next few years involving travel and whether those who help others cross state borders in search of the procedure can be charged.
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