Texas Republican lawmakers say criminal penalties for abortion should be enforced immediately

More than 70 Republican state lawmakers have signed onto a friend-of-the-court brief siding with Attorney General Ken Paxton in arguing that a nearly century-old law imposing criminal penalties against those who help a patient obtain an abortion is enforceable now that the U.S. Supreme Court overturned Roe v. Wade. A decision on whether that pre-Roe measure is enforceable is expected in the near future from the Texas Supreme Court, which has temporarily allowed the statute to be enforced civilly but not criminally. The lawmakers, in a filing penned by state Rep. Briscoe Cain of Deer Park, argue that the Texas Legislature has “repeatedly and emphatically affirmed” the existence and continued enforceability of the old laws in recent legislation.

They note both the state’s anti-abortion trigger law, which will go into effect 30 days after the decision overturning Roe is certified, and its previous six-week abortion ban included language to that effect. Lawyers for the plaintiffs — seven abortion clinic groups throughout Texas — point to legislative and judicial treatment of the old laws that they say proves they are no longer considered to be in effect, including a 2004 Fifth Circuit opinion that said the old laws were “repealed by implication.” The old statutes were also removed from copies of the state’s criminal and civil codes online. In court records filed Monday, the Republican lawmakers argue that a state court can now make its own decision in the case, no matter how federal courts have ruled in the past. They add that the Texas and U.S. Supreme Courts both “disfavor repeals by implication” and defers to it only when statutes can’t be “harmonized.” The lawmakers argue the laws could work in tandem. The June ruling from the U.S. Supreme Court upended 50 years of legal precedent protecting the right to an abortion and sparked confusion about what Texas law allows.