Abortion would be illegal in Texas if the Supreme Court overturns Roe v. Wade

Nearly all abortions would be outlawed in Texas if the U.S. Supreme Court decides to overturn Roe v. Wade, its landmark decision that established a constitutional right to abortion.

A draft majority opinion, leaked to Politico and published Monday, suggests that justices are considering a ruling that would do just that: reverse almost 50 years of constitutional protections for abortion and allow state legislatures to set distinctive limits on the procedure.

Should the court issue such an opinion later this year, it would fundamentally change the landscape of reproductive rights across the nation and in Texas, where laws already on the books would end virtually all access to the procedure within a month of the ruling.

“A Supreme Court decision to overturn Roe adheres to the Constitution and returns the decision on abortion back to the states as mandated by the 10th Amendment,” said Lt. Gov. Dan Patrick in a statement. "I am sure the left will fight to allow abortion in Texas. They will not win that fight.”

More: Explosive leaked draft in abortion case reveals Supreme Court on verge of overturning Roe

Texans have been living under a significant ban on abortion since September after the Legislature adopted a law prohibiting the procedure after about six weeks of pregnancy. Senate Bill 8 employs a unique civil enforcement mechanism that has allowed it to withstand judicial challenges.

The number of abortions in Texas has plummeted as a result, while demand for self-managed abortion care has surged. Abortion clinics in nearby states have reported an influx of Texas patients, and state doctors, nurses and other workers who help facilitate access to abortion have been operating in fear of the debilitating financial penalties outlined in the law.

State Rep. Donna Howard, D-Austin, leads the Texas Women's Health Caucus and said abortion rights advocates have known for years that this kind of Supreme Court action was becoming more likely, but the timeline was accelerated by the success of SB 8 in the court system.

"Texas really pushed the boundaries of what the anti-abortion movement thought they could actually achieve and set things in motion," Howard said. "Even though so many people thought (SB 8) was an extreme measure, what we're seeing with this draft is that they don't think it went far enough."

How the Supreme Court could impact Texas

For now, Roe v. Wade is still on the books and abortion — to the extent it is permitted under SB 8 — is still legal in Texas. The draft opinion leaked Monday does not have any legal weight until the court issues a ruling, likely by the end of June.

Chief Justice John Roberts confirmed that the document is authentic, but he said in a statement that “it does not represent a decision by the Court or the final position of any member on the issues in the case.” He also ordered an investigation into the leak.

The court is weighing a challenge to a Mississippi ban on abortions after 15 weeks. During oral arguments on the case in December, several justices signaled that they might be open to upholding the law but remained unclear how far they would go to undermine past landmark decisions on abortion.

If Roe v. Wade were repealed or scaled back, Texas has a so-called trigger law in place that would outlaw abortion to the limits allowed by the court and make it a felony to perform an abortion, except to save the life of a pregnant patient or if the patient risks “substantial impairment” of a major bodily function. The law does not include exceptions in the case of rape or incest.

Doctors who perform illegal abortions could face life in prison and fines of up to $100,000.

John Seago, legislative director for the anti-abortion organization Texas Right to Life, said he was pleased with the contents of the document but called the leak troubling. He said he suspected that its release was "motivated to change the direction the court was headed in."

"Our movement sees the danger in the court now backing away from that direction, or one of the justices changing their vote and looking for a different path," Seago said.

But abortion rights advocates have been preparing mentally and logistically for the court to overturn Roe v. Wade.

"Like many abortion providers, we are doing everything we can to try to meet the needs of pregnant people in the U.S., and no matter what the future holds, we will see as many people as we can for as long as we can," said Amy Hagstrom Miller, president and chief executive officer of Whole Woman's Health.

Whole Woman's Health and other abortion providers have worked to expand telemedicine offerings and connect Texas patients with clinics in states with fewer restrictions on the procedure.

If the court allows states to prohibit abortions, the closest states without bans would be Kansas and New Mexico. That means the average one-way driving distance to an abortion provider for a patient in Texas would be 542 miles, according to an analysis by the Guttmacher Institute, an abortion rights policy organization.

Already, Oklahoma — which had become a prime destination for Texans seeking an abortion — has adopted its own six-week ban on abortion modeled after SB 8 in Texas.

Enhanced penalties post-Roe v. Wade

Should the court overturn Roe v. Wade and abortion becomes illegal in Texas, enforcement could be complicated by some local officials who have said they will not prosecute or criminalize personal health care decisions.

That includes Travis County, where District Attorney José Garza said Tuesday that he would "use my discretion to keep families safe" if the leaked opinion is what the court ultimately hands down.

"In Travis Co., we know our community is safer when women and families can make personal healthcare and reproductive decisions without interference from the state," he said in a tweet.

Seago said state lawmakers should pursue changes that would tighten criminal enforcement and make it harder for local prosecutors to avoid bringing charges. That could include authorizing the Texas attorney general's office to prosecute a physician if a local district attorney declines to bring charges, or allowing a neighboring prosecutor to step in.

Seago also said his organization would press state lawmakers to expand the civil liability provision in SB 8 to cover all abortions, not just those after six weeks of pregnancy.

Under SB 8, any private individual can sue abortion providers, nurses or any person who aids or abets an abortion that violates the law. Successful litigants can collect at least $10,000.

Asked about Seago's proposal to allow civil lawsuits to continue if abortion was outlawed, Howard was almost speechless.

"I'm really dumbfounded," she said. "I'm trying to find the words. It feels like a bludgeoning. It feels like there is no end in sight here until there is a 'Big Daddy' government that is going to totally have their thumbs on the backs of women and anybody who is trying to help a woman."

More: Her fetus no longer viable, Texas woman describes crossing state lines to have an abortion

This article originally appeared on Austin American-Statesman: Texas would outlaw abortion if Supreme Court overturns Roe v. Wade