Abortion Laws

About this Guide

This guide provides an overview of abortion laws in Texas. It also discusses recent developments due to the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. This is a rapidly developing topic and the information here may be subject to change.

Jump to a topic:

Texas Law | Pending Texas Legislation | U.S. Supreme Court Decisions and Constitutional Law | Federal "Supremacy Clause" and Federal Actions

Is abortion illegal in Texas?

In 2022, Texas enacted a law prohibiting almost all abortions. Texas now has civil and criminal penalties for those who perform an abortion. It is important to note that the person receiving the abortion is rarely at risk for these penalties.

There is an exception if the life or health of the pregnant patient is at risk. The conditions for this exception are outlined in Section 170A.002 of the Texas Health & Safety Code.

There is not an exception for cases of rape or incest.

For more details, please see our FAQ "Is abortion illegal in Texas?"

Texas Law

Texas's laws related to abortion are mostly found in the Texas Health and Safety Code. For an overview of how Texas's abortion laws developed over time, please see our FAQ on the topic or the "History of Abortion Laws" page of this guide.

Texas Health and Safety Code, Chapter 170A
This chapter of the Texas statutes prohibits abortion in Texas. It went into effect on August 25, 2022, 30 days after a judgment overturning Roe v. Wade was issued. Please see the "Trigger Laws" page of this guide for more details.
Texas Health and Safety Code, Chapter 171
This chapter contains a variety of laws related to abortion. It includes laws about "partial-birth" abortions, medical abortions, the stage of a pregnancy at which an abortion can be performed, and informed consent related to abortions.
Texas Health and Safety Code, Chapter 245
This chapter establishes licensing requirements and standards for abortion facilities.
Texas Family Code, Chapter 33
This chapter concerns abortions for unemancipated minors. It requires a physician to either notify the minor's parent or guardian, receive a court order to perform the abortion, or certify to the existence of a medical emergency requiring an abortion.
Texas Revised Civil Statutes 4512.1-.6
Sections 4512.1-.4 and .6 were found to be "implicitly repealed" by a 5th Circuit Court decision in 2004 related to the original Roe v. Wade ruling. However, they were never formally repealed and removed from the statutes. After the Dobbs ruling, Attorney General Ken Paxton stated that they could be enforced. These laws create some criminal penalties for performing abortions or providing the means for abortions.

U.S. Supreme Court Decisions and Constitutional Law

The right to an abortion is not specifically listed in the United States Constitution. Because of this, the courts must determine whether it is an "unenumerated," or implied right. As the U.S. Supreme Court is the highest court in the United States, they are the final authority on questions about unenumerated rights.

Courts also have the ability to determine whether a law violates a Constitutional right. This is known as "judicial review."

Important Supreme Court Decisions Related to Abortion

Dobbs v. Jackson Women’s Health Organization, 597 US 215 (2022)
This case found that Roe v. Wade, which guaranteed some rights to abortion, was wrongly decided. The opinion states that there is not an implied right to abortion in the United States Constitution.
Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (2016)
In this case, the Court struck down several of Texas's abortion laws due to the fact that they posed an "undue burden" to abortion access. The Court found that requirements for a physician to hold nearby admitting privileges and for abortion clinics to comply with standards for surgical centers were substantial burdens.
Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al., 505 US 833 (1992)
In this case, the U.S. Supreme Court upheld the decision in Roe v. Wade. It also created a new standard for courts to use in evaluating the constitutionality of abortion laws. The "undue burden" standard asks whether a law is putting a "substantial obstacle" in the path of a woman seeking an abortion prior to the fetus's viability. This case also overturned Roe's "trimester" structure, instead allowing states to regulate or prohibit abortion once the fetus was "viable," or able to survive outside the womb.
Roe v. Wade, 410 US 113 (1973)
In Roe v. Wade, the U.S. Supreme Court balanced a woman's right to privacy against the state's interest in protecting potential life. The Court held that states could only regulate abortion in varying degrees according to the stage of the pregnancy. Under this ruling, states could impose some restrictions to protect maternal health in the second trimester and only completely ban abortion during the third trimester.

Sections of the United States Constitution at Issue in Supreme Court Cases Concerning Abortion

1st Amendment
In Roe v. Wade, Jane Roe's attorneys argued that previous Supreme Court cases such as Stanley v. Georgia, 394 U.S. 557 (1969), established an implied right to privacy in the First Amendment.
4th Amendment
This amendment protects from "unreasonable searches and seizures" by the government. Many court cases have argued that this implies a right to privacy.
5th Amendment
This amendment contains a protection from self-incrimination. Court cases such as Boyd v. United States, 116 U.S. 616 (1886), have argued that this clause creates a right to privacy.
9th Amendment
This amendment concerns "unenumerated" rights not specifically listed by the Constitution.
14th Amendment
This amendment contains the "due process clause" that was at issue in Dobbs and Roe.

Federal "Supremacy Clause" and Federal Actions

Article VI of the United States Constitution contains a section referred to as the "Supremacy Clause." It reads as follows:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

This is commonly understood to mean that the United States Constitution and federal laws overrule state laws. In the wake of the Dobbs decision, the United States government may take steps to protect reproductive care on the federal level. Ultimately, a court will need to decide how these federal protections affect state laws.

Federal Actions

Office of Legal Counsel's Opinion re: Delivery of Abortion Medication through USPS
On January 4, 2023, the Department of Justice's Office of Legal Counsel issued an opinion about the delivery of abortion medication through the mail. They state that the Comstock Act does not prohibit delivery of mifepristone by the United States Postal Service. This law restricts how some items may be sent through the mail if the intent is that the recipient will use them illegally.
FDA Review of the Mifepristone REMS Program
On January 3, 2023, information on the Federal Drug Administration's website stated that they reviewed and updated their Mifepristone Risk Evaluation and Mitigation Strategy Program. Under the changes, patients can get abortion medication from a participating pharmacy with a doctor's prescription.
HHS Letter re: Life-Saving Treatment
On July 11, 2022, the Secretary of the United States Health and Human Services Department, Xavier Becerra, issued a letter to Medicare/Medicaid health care providers. The letter instructs them that they must provide an abortion if it would save a patient's life. It adds that any state abortion law that lacks a life-saving exemptions is pre-empted by the federal Emergency Medical Treatment and Active Labor Act.
On July 14, 2022, Texas Attorney General Ken Paxton filed a lawsuit in federal court to challenge this guidance.
HHS Guidance to Nation’s Retail Pharmacies
On July 13, 2022, the US Department of Health and Human Services issued guidance to retail pharmacies related to prescription abortion medication. It did not create new law, but reminded pharmacies of existing federal law.

Specifically, a pharmacy receiving federal assistance may not discriminate "basis of race, color, national origin, sex, age, and disability in their programs and activities. This includes supplying medications; making determinations regarding the suitability of a prescribed medication for a patient; and advising patients about medications and how to take them."
Attorney General Merrick B. Garland Statement on Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization (6/24/22)
This statement describes Attorney General Garland's view of the federal government's role in providing and protecting reproductive care.

Understanding the Law

Supremacy Clause: Common Interpretation
This page from the National Constitution Center explains the Supremacy Clause and what it means for federal and state laws that say different things about the same subject.
The Heritage Guide to the Constitution - Supremacy Clause
This essay from Professor Gary Lawson explains the history and significance of the Supremacy Clause of the United States Constitution.

Additional Resources

Know Your Rights: Reproductive Health Care
The United States Department of Health and Human Services has created this overview to reproductive rights in America.