“A Backdoor Effort” to Revive Texas’ Century-Old Abortion Law

In late March, women who had suffered severe pregnancy complications and were forced to leave Texas for care sat in the state Senate chamber and implored Texas lawmakers not to make such situations even worse. Some had previously sued the state over its abortion bans, after being denied needed medical care in Texas. Devastating fetal diagnoses—one woman learned that the fetus was developing without a skull and would not survive, another was told that severe complications with one developing twin threatened her life and the life of her other healthy twin—left some scrambling to get over the state line. 

But instead of expanding medical exceptions to the state’s abortion bans in order to protect people in these circumstances, the women said, measures being pushed by Texas Republicans threatened to further criminalize them and their loved ones. 

The senators had been hearing testimony on abortion legislation, including a bill that purported to clarify the narrow medical exceptions in Texas abortion bans, following reports of deadly delays in care due to the vague language and penalties of up to life in prison for doctors who violate them. For weeks, that bill, Senate Bill 31, dominated advocacy efforts and headlines. This was in part because the bipartisan measure, deemed a priority bill by even the staunchest anti-abortion lawmakers, contained what some called a “Trojan Horse” provision: By including an early 20th-century, pre-Roe abortion law among the several abortion bans that SB 31 amended, critics said the bill could help resurrect the century-old abortion ban that would allow for criminalizing pregnant people seeking abortions, along with anyone who helps them get the procedure, even if it’s out of state. Eventually, the bill’s authors agreed to add language clarifying that the legislation was neutral on this issue, and it passed the Texas Senate last week. 

Yet Texas Republicans have at the same time been pushing forward another sweeping anti-abortion bill, Senate Bill 2880, which also includes language that could be used to enforce the same pre-Roe ban, often called the 1925 law. 

“This is a backdoor effort to fully reinstate the 1925 law,” Houston-area Democratic Senator Carol Alvarado said last week, just before SB 2880 also passed the full Senate. “It is a vote to criminalize women, trap them within the borders of Texas, and to threaten anyone who tries to help them, regardless of whether the abortion occurs legally in another state.” This includes situations where the pregnancy is a result of rape or incest, or where the fetus has an anomaly that means it will not survive—none of which are an exception under Texas law. 

Multiple Texas attorneys who specialize in reproductive health told Bolts that SB 2880 and its inclusion of language amending the state’s century-old abortion law could constitute an unprecedented step toward the sweeping criminalization of abortion in a state that already has some of the strictest abortion laws in the country. The measure, billed as an effort to crack down on abortion medication following an influx of the pills into the state via telemedicine, would allow anyone to sue individuals or companies who prescribe, manufacture, transport, or distribute abortion pills to a Texas resident, in exchange for a $100,000 reward. The bill would also empower people to bring wrongful death lawsuits following an abortion, and give new powers to the Texas Attorney General to enforce the state’s abortion bans, including the 1925 ban.

Elizabeth Sepper, a law professor at the University of Texas at Austin, says the language in SB 2880 seems to more clearly attempt to make the case for reviving the 1925 law than the original language in SB 31. It not only acknowledges that the pre-Roe law is still on the books, but also explicitly empowers the attorney general to pursue civil action for damages under that law. 

“All the anti-abortion legislators, who’ve been disclaiming any interest in using the abortion exception bill to make arguments for reviving the pre-Roe law, seem to be doing it much more explicitly in this bill,” Sepper told Bolts. “But it’s buried, given the many other very significant changes this bill would make.”

Currently, the pre-Roe ban is blocked from enforcement by a 2023 order by Austin federal district court Judge Robert Pitman. In it, he cited a 2004 ruling from the Fifth Circuit appeals court stating that the law had been “repealed by implication.” Despite anti-abortion officials and advocates arguing that the law is valid, Pitman wrote that merely saying an old law hadn’t been repealed did not itself revive it. But that ruling is now on appeal to the Fifth Circuit, and attorneys say that passing laws like SB 2880 that actually amend the 1925 ban could help bolster the state’s argument that the law is still active and can be enforced. 

Proponents of the bill have alluded to this strategy: Asked on the Senate floor about the inclusion of the 1925 language in SB 2880, its author, Republican Senator Bryan Hughes, said that “this bill is telling a court when we refer to abortion laws, we are including that statute.” John Seago, president of Texas Right to Life, which helped craft SB 2880, has said that he believed including language to amend the pre-Roe law in new abortion legislation would help support the argument that it’s still active, telling the Houston Chronicle in March that “obviously if the Legislature amends something, it is reiterating their view that it is a valid law.”

Anti-abortion officials and litigators in Texas have previously expressed their intent to enforce the 1925 ban against people seeking abortion and those who help them, including for care outside the state. Texas Attorney General Ken Paxton called it “100% good law” when he tried to enforce it immediately after the Dobbs decision in 2022. Abortion funds paused providing assistance for out-of-state travel for months, and eventually filed the lawsuit that led to Pitman’s decision. Last September, Paxton sued the Biden administration to access medical records of people who traveled out of Texas to get an abortion. In December, he sued a New York doctor for allegedly prescribing abortion pills to a Texas patient, despite New York having a shield law that protects doctors who provide abortion care that is legal in their state. 

In a recent court filing, Paxton wrote that “criminalization is a means to an end—the protection of human life, including the life of the unborn,” regardless of where the abortion occurred. “When that procurement takes the form of a bus ticket for the pregnant Texan to an abortion clinic, or the paying from Texas of the cost of a pregnant Texan’s hotel room adjacent to that clinic, it does not matter if the travel and hotel are in Albuquerque or Austin—the procurement in Texas of the means of an abortion has intruded upon the State’s interest in the protection of human life.” 

Jonathan Mitchell, a former Texas Solicitor General and the architect of Senate Bill 8, the state’s “bounty hunter” abortion ban that passed in 2021, has tried to depose people he believed had abortions out of state, and has worked with anti-abortion activist Mark Lee Dickson to pass local ordinances to ban travel on local roads to get abortions out of state. (Dickson testified in favor of the House version of SB 2880 late last month). In a wrongful death lawsuit filed on behalf of a Texas man against two friends who allegedly helped his ex-wife get abortion pills, Mitchell wrote in 2023 that the woman who had the alleged abortion was also liable under pre-Roe laws, which “do not exempt the pregnant woman who aborts from criminal liability or prosecution.”

Critics say SB 2880, which is now awaiting passage by a Texas House committee, could also subvert the courts in unprecedented ways. The bill would subject attorneys who challenge the law to additional legal fees and allow people to sue state court judges who find the law unconstitutional, in exchange for $100,000. A person could still be sued even if their action took place while the law was blocked by a court—an echo of Paxton’s threats of legal action against three Houston hospitals in 2023 if they provided an abortion for a Texas woman whose pregnancy had a fatal fetal anomaly and had already resulted in multiple visits to the emergency room, despite a judge ruling that she could have the procedure.

Hughes, a Republican from Mineola, also authored Senate Bill 8, as well as this year’s legislation to clarify medical exceptions to the state’s abortion ban. He has so far refused to add clarifying language regarding the 1925 law to SB 2880, which is dubbed the Women and Child Protection Act. He has repeatedly insisted that the bill would not target people seeking abortion or crack down on travel for out of state abortions, stating on the Senate floor that there’s “nothing here that has any effect or would put any burden on the moms.” Hughes did not respond to a request for comment.

But reproductive rights attorneys in the state, some of whom asked not to be named because of potential involvement in future litigation, say that is blatantly untrue given the inclusion of the 1925 language. While a federal judge found that Texas’ other abortion bans pertain specifically to abortions that occur in Texas, the pre-Roe law does not have that geographic limitation. The ban on “furnishing the means” for an abortion in the old law, therefore, could apply to the procedure in other states—if, for example, a person is in Texas at the time they scheduled it, or drove on Texas roads before crossing state lines. And unlike every modern abortion ban in the state, and unlike the other sections of SB 2880, which do exclude the person seeking an abortion from civilian lawsuits, the 1925 law also does not include any explicit exception for pregnant people. 

“Either they want to criminalize women, or they understand that the 1925 ban is currently not in effect and they’re trying to make the argument that it should be,” one attorney told Bolts. “If they truly believe the 1925 ban is in effect, then they should be doing everything possible to include an explicit provision that says under no circumstances can anyone ever pursue a pregnant woman—if that is indeed their intent.” 

Sepper, the UT law professor, says that taken together, what has happened with SB 31 and now SB 2880 illustrates the true intent of conservative lawmakers when it comes to abortion restrictions.

“I think it shows that anti-abortion legislators are quite content with the draconian nature of Texas abortion laws and are hoping to make them still more draconian,” Sepper told Bolts. “To see that very, very limited clarifying effort side by side with truly sweeping legislation that really pushes the boundaries of constitutional separation of power, that sets up a regime that aims to chill lawyers from defending people who get swept up in anti-abortion lawsuits, that threatens judges who might issue orders—it’s quite extreme, paired with a really milquetoast clarifying bill.”

While the inclusion of 1925 language in SB 2880 had until then evaded much scrutiny, Democratic senators echoed this sentiment on the floor last week, saying the reassurance Hughes offered for SB 31 now meant little when he immediately pushed to pass similar language in another piece of legislation. 

“You get on the mic saying this is not a travel ban—we don’t believe you,” said Molly Cook, a Houston-area Democrat and emergency room nurse. “This does make 31 feel a lot more hollow. Because it feels like the real intention is in 2880.” The medical exceptions bill, said Sarah Eckhardt, an attorney and Democrat representing the Austin area, was “one tiny step forward, followed immediately by this staggering hurdle backwards.”