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SINCE 1954

CIVIL RIGHTS

ABORTION IS
(AGAIN) A
CRIMINAL-JUSTICE
ISSUE
Outlawing reproductive healthcare causes more harm without the
intended effect.

by S C O T T H E N S O N
JULY 13, 2022, 8:00 AM, CDT

A L E J A N D R O A LVA R E Z / S I PA U S A V I A A P

W
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henever abortion came up during my three decades working on criminal-
REPUBLISH justice reform, the interlocutor always took the attitude, “That’s someone else’s
job.”

Not anymore. With the Supreme Court’s decision in Dobbs v. Jackson Women’s Health
Organization on June 24, abortion once again became a criminal-justice issue in Texas, full
RELATED ARTICLES stop.

The Court’s abandonment of Roe v. Wade—combined with a decision last year by Governor
BOOKS
Greg Abbott and the Texas Legislature to reaf rm criminal statutes on abortion from the
THE FREE PEOPLE’S 1925 Penal Code if and when Roe ever fell—have suddenly dumped the abortion question
VILLAGE: EVERYDAY LIFE back into the realm of criminal law.
IN SOLARPUNK TEXAS
by T E X A S O B S E RV E R The Justices decided Roe when I was four years old, so I’ve never known a world in which the
S TA F F
criminal courts managed women’s reproductive choices. It’s easy to forget that the “Wade” in
Roe v. Wade was Henry Wade, the Dallas County District Attorney and that for a century-plus
HOUSING before that, performing or facilitating an abortion was a crime for which people were
SHORT-TERM RENTALS arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same
CAUSE A LONG-TERM facilities as murderers and thieves.
MESS
by E VA RU T H M O R AV E C Statutes banning assisted or intentional miscarriages were on the books in Texas from at
least 1854 before being updated to include the word “abortion” in 1907 and then codi ed
into the Penal Code in 1925.
PO L I T I C S

AFTER A WEEK ON Attorney Doug Gladden of Barbieri Law Firm identi ed 40 abortion convictions in Texas
DEFENSE, KEN PAXTON’S appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of
TEAM GETS THE FLOOR which ve were reversed. Some cases may not have been appealed, and records may not be
by J U S T I N M I L L E R complete, but even so, this tells us abortion statutes weren’t frequently enforced.

What they did do was prevent most legitimate, trained doctors from performing them. In
Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on
an 18-year-old girl. In 1907, a physician was prosecuted in Haskell for performing an
abortion on his 13-year-old sister-in-law, who had been raped. In El Paso, Dr. Andrea Reum,
whose husband was also a medical doctor, was prosecuted after performing an abortion on a
young black woman. (A rich society lady, Reum wore fashionable gowns and diamonds
while incarcerated in the county jail.)

The earliest case I found reported in Texas newspapers was in 1890 in Comanche, where a
medical doctor was arrested for performing an abortion. Charges were later dismissed
when the victim refused to testify.

Such episodes were widely publicized in the press and sent a message to physicians that
performing abortions would cost them their licenses. In 1919, the Legislature passed H.B.
235, which made that of cial, requiring the state medical board to rescind licenses for any
physician found to have performed a criminal abortion.

FORBIDDING SAFE ABORTIONS

DIDN’T MEAN WOMEN WOULDN’T
PURSUE UNSAFE ONES EN MASSE.

A DV E RT I S M E N T

In 1960, the Amarillo Globe-News cited local physicians’ concerns that the abortion ban
forced women to have “do-it-yourself” abortions and reported that most women seeking
the procedure were married.

Forbidding safe abortions didn’t mean women wouldn’t pursue unsafe ones en masse. By the
BECOME A MEMBER OF THE time Roe was decided, the practice had become widespread. According to the Fort Worth Star-
TEXAS OBSERVER Telegram, in 1966, an estimated one million women had criminal abortions, and 8,000 of
You can chip in for as little as 99 them died as a result.
cents a month.
By contrast, in 2021, the Guttmacher Institute estimates that about 930,000 women had
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safe, medical abortions, though the U.S. population is much larger than in 1966. So legalizing
abortion didn’t make their number increase; it only made things safer and less threatening
for women and the nurses and physicians brave enough to help them.

If it’s true that abortions were more prevalent under a criminal-sanctions regime, from a
policy perspective, recriminalizing greatly increases the harm without achieving the desired
result.

In 2021, Texas enacted new laws criminalizing doctors and others who perform abortions:
The new crime is a rst-degree felony, with an accompanying penalty of ve years to life in
prison. Moreover, the Legislature de ned the term broadly to include surgical and non-
surgical means, including drugs/medication, which the Texas District and County Attorneys
Association (TDCAA) notes “now account for more than half of all elective abortions.”

The new statute also creates civil liability for the same doctors, which TDCAA suggests
creates a constitutional violation related to “double jeopardy.” If a defendant pays the civil
ne ($100,000 per episode), criminal prosecution would be precluded, while criminal
punishment would make the civil nes void. “While the Double Jeopardy Clause does not
prohibit the initial ling of concurrent criminal and civil actions,” according to the
prosecutors’ association, “a conviction in the former or a full payment in the latter will
foreclose the other option.”

Texas Attorney General Ken Paxton issued a press release declaring that “immediately
pursue criminal prosecutions based on violations of Texas abortion prohibitions predating
Roe that were never repealed by the Texas Legislature,” but the prosecutors’ association
called that claim “speculative.” Several of those laws seemingly con ict with the 2021
statute, and courts would have to decide how they interact.

The other big intersection of criminal law and abortion rights in the wake of the Dobbs
opinion arises for women under the supervision of the justice system—either out on bail or
on probation or parole. Whether these women will be allowed to leave their jurisdiction to
get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some
never will. This will create a patchwork of policies as well as a massive incentive for
defendants to lie to the courts and abscond.

Now, because this hasn’t been an issue the criminal-justice system dealt with for more than
a half-century, there’s no obvious criminal-justice reform group well-situated to confront
these questions. The ACLU will step up, one assumes, but they’re being pulled in a million
directions and don’t have a winning track record on these topics. Meanwhile, abortion-rights
groups which one would anticipate would be most aggressive haven’t dealt with the justice
system in a half-century and will have a steep learning curve. I fear that neither the abortion
rights movement nor the criminal-justice reform movement is well-positioned to confront
what’s coming next.

S C O T T H E N S O N , a former Texas Observer associate editor, has worked with and for various criminal-justice reform
organizations in Texas since the mid-’90s. He is currently executive director at the nonpro t Just Liberty and is the author
of the blog, G R I T S F O R B R E A K FA S T .

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