Texas Pre- and Post-Dobbs Landscape

As previously reported, Dobbs v. Jackson Women’s Health Organization held that the authority to regulate abortion is returned to the states, permitting states to regulate abortion within their borders. Thus, employers and administrators of plans that cover abortion services will need to be cognizant of state restrictions on availability of abortions and related services. As we reported in our May Alert, Texas has been prominent in legislating restrictions on performance of and access to abortions. 

In Effect Pre-Dobbs

Before the Dobbs case was decided, abortion restrictions and accompanying enforcement occurred under two methods. In either case, only licensed physicians may perform abortions. The conditions of the law are largely imposed on the physician, not the woman obtaining the abortion.

• Texas state law, enforceable by the Texas Health and Human Service Commission (and the Texas Medical Board as to abortion-inducing drugs), prohibits Texas-licensed physicians from performing abortions after 20 weeks of pregnancy, with exceptions for conditions risking the mother’s death or physical impairment. Abortions after 16 weeks of pregnancy had to occur in a hospital. Abortion-inducing drugs could only be supplied by a physician (not mailed or couriered) after certain conditions were satisfied, including ensuring that the woman was not more than 7 weeks pregnant. 
• Texas state law, the “Texas Heartbeat Act” enforceable by private citizens, prohibits Texas-licensed physicians from performing abortions after the physician detected a fetal heartbeat, with exceptions for certain emergencies. The Act covers conduct “that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise,” if the abortion in question was performed in violation of Texas law.

Potentially Effective Post-Dobbs: 

• A Texas criminal statute enacted before Roe v. Wade prohibits any person from performing abortions or furnishing the means for procuring an abortion. This statute has been unused since Roe v. Wade was decided, and is now the subject of litigation that will address, among other things, whether and when actions taken after the Dobbs decision and before the date the “trigger law” goes into effect (see below) can be prosecuted.
• Now Dobbs has been adjudicated, Texas’s so-called “Trigger Law” will go into effect. It was designed to go effect 30 days after the issuance of a United States Supreme Court judgment that overruled Roe v. Wade, 410 U.S. 113 (1973), allowing states to prohibit abortion. The specific effective date is still to be determined, as it is based on the judgment date (distinct from the opinion date).[1] However, the Attorney General’s office will announce the date when it is known. The law states simply that “a person may not knowingly perform, induce, or attempt an abortion,” with exceptions for conditions risking the mother’s death or physical impairment. This prohibition is effective from the date of conception. Doing so is a criminal offense with accompanying civil penalties. 
• The pre-Dobbs laws discussed above also remain in effect.

What’s Next?  The implications of Dobbs continue to unfold on the state and federal level.  On the federal level, as reported in our recent Alert, the Biden Administration is exploring ways to promote access to and education about abortion and other reproductive health services, and bolster privacy and security measures for individuals and businesses involved.  On the Texas state level, some legislators have outlined plans for legislation aimed at different scenarios where employers or others pay for or reimburse abortion-related expenses. 

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[1] Correction from a previous version of this alert which cited the trigger law becoming effective 30 days after the opinion date.