Analysis: Texas’ new standard is abortions for those who can afford to leave Texas
The Texas ban on abortions after about six weeks of pregnancy effectively makes abortion illegal for most pregnant people — but not for those who can afford out-of-state travel.
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Texas hasn’t outlawed abortion for everyone — just for those who can’t afford to travel to other states and countries where the decision about whether to have a child is left to the person who’s pregnant.
The state’s new restrictions on abortions, effectively outlawing them after about six weeks of pregnancy, have been in effect for almost eight months. An embryo's initial cardiac activity is detectable at about that time — often before a person knows they’re pregnant. Under current Texas law, abortion is illegal after those pulses can be detected.
It’s still legal in other states, however, if a pregnant Texan has the means to get there.
The new state law includes a novel civil enforcement mechanism — so new it’s even confusing to some prosecutors — that deputizes citizens to report anyone who helps a pregnant Texan obtain an abortion. That keeps the state from being sued, since it’s not enforcing anything, and it pays a bounty of $10,000 to the people ratting on their fellow Texans. It’s a backhanded way to punish anyone assisting, in any way, in an abortion — excluding the pregnant person.
It’s got a good chance of becoming a model enforcement tool for other states — Idaho’s version is being contested in court, for instance — but someone should probably explain it to prosecutors first.
Consider the case of Starr County District Attorney Gocha Allen Ramirez, who asked a grand jury to indict a woman for murder over a self-induced abortion, got her arrested on a Thursday and then released her the next Saturday with this astonishing admission: “In reviewing applicable Texas law, it is clear that Ms. [Lizelle] Herrera cannot and should not be prosecuted for the allegation against her.”
Why? Because it’s not against Texas law, Ramirez said when dropping the indictment.
Had someone helped her, they might have been open to prosecution. That makes traveling to other places for abortions riskier for helpers, but not for pregnant people. And there’s evidence Texans seeking abortions have been traveling to other states.
Oklahoma was initially the most popular option, but that’s about to end, now that the Oklahoma Legislature made it a felony to perform abortions there. The new law will take effect this summer, assuming their governor signs it as expected. That’ll move attention elsewhere, but there are still states where the decision on whether to have an abortion is left to people who are pregnant.
The U.S. Supreme Court is considering a Mississippi law that bans abortions after 15 weeks into a pregnancy. The justices could alter the constitutionally protected right to abortion that has been in place since the court’s 1973 Roe v. Wade decision, based on fetal viability, or about 23 weeks into a pregnancy.
Other states have followed Texas and Mississippi into stricter laws, and many have approved so-called “trigger laws” — bans on abortion that would take effect if and when the Supreme Court abandons the Roe v. Wade precedent. Oklahoma’s law is pending. So is Idaho’s. Kentucky lawmakers approved a 15-week ban that includes restrictions on medication abortions this month. A new Florida law, based on the Mississippi law, will take effect this summer.
A map of what’s legal in each state is taking shape. In one example, The Washington Post is tracking abortion laws — both restrictive and permissive — that are in effect now or are working through various state legislatures. It’s a geographic guide to the legal obstacle course that could come into focus when the high court rules in the Mississippi case later this year.
For people seeking abortions who live in states where the procedure is not allowed, it points to the places where it is allowed. Some states are considering variations of the Texas law, hoping to make it illegal to perform abortions on their residents even in other states. Missouri is an example. Texas doesn’t have anything like that — yet.
Instead, the state has virtually banned abortions within its borders, effectively taking away what is currently a constitutionally protected right — until and unless the Supreme Court rules otherwise — from anyone unable to travel to a state where abortion is still allowed.
For pregnant Texans with means, a trip to an out-of-state doctor is an expensive option. But it’s still an option — one that most Texans don’t have.
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