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New Texas trigger law makes abortion a felony

SCOTT SIMON, HOST:

Laws restricting access to abortion went into effect in a number of states this week, including Texas, which already has some of the toughest restrictions in the country. Its new law goes even further. It makes it a felony to provide an abortion, and that is punishable by up to life in prison. We're joined now by Elizabeth Sepper, who is a professor of law at the University of Texas at Austin.

Professor, thanks so much for being with us.

ELIZABETH SEPPER: Thanks for having me.

SIMON: Let's begin with this new law, if we could. What are some of the penalties for which it provides?

SEPPER: This is a law that criminalizes providing abortions. It comes with five years to life imprisonment, as well as civil penalties of $100,000 for abortion and administrative penalties in the form of mandatory revocation of a license to practice medicine, do nursing, pharmacy, so on.

SIMON: So providing abortion would presumably apply to medical personnel, but also, who else?

SEPPER: Given the existence of medication abortion, anyone who hands a medication abortion pill to another person would be subject to this criminal ban.

SIMON: So this could be not just a pharmacist. It could be a friend.

SEPPER: It could be a friend. It could be a stranger. It could be someone, a friend of a friend, a family member, so on.

SIMON: If you put this law together with the laws that are already on the books, what does the landscape of laws look like?

SEPPER: So there's dozens of sort of smaller criminal laws around informed consent, the timing, how often someone has to come, who can hand out medication abortion, even. Then we have this trigger ban, which went into effect on Thursday. And then we have a pre-Roe ban which prohibits furnishing the means of abortion as well as providing abortion services. And on top of that, we have a medication abortion-specific criminal law that means that mailing a medication abortion into the state or providing it to someone in the state is also a crime.

SIMON: As I'm certain you know, Professor, Texas has some of the best doctors and hospitals in the world. Would they be criminally liable for prosecution if they acted to save the life of a woman?

SEPPER: The Texas abortion ban does have an exception for life-saving abortion care. However, there was litigation just this past week. We'll see where it goes going forward. But Texas succeeded in convincing a federal judge that federal protections that would require physicians to provide abortion care where necessary to preserve a person's health in serious jeopardy don't apply in Texas. Only life-saving abortions are allowed.

SIMON: I gather some prosecutors have said that they just wouldn't bring criminal charges against abortion providers.

SEPPER: A number of prosecutors in big cities and counties have committed not to prosecute or to prioritize policing toward a provision of abortion. This isn't going to result in abortion providers beginning to perform abortions. They would still risk their medical licenses, as well as face a $100,000 in civil penalties that the attorney general can bring.

SIMON: And, Professor, there's a law that passed last year that allows Texas citizens to sue each other, isn't there? And that still stands?

SEPPER: Yes. In addition to our criminal laws, there's a private right of action. So even if prosecutors won't bring criminal charges, strangers could bring civil causes of action against people who aid and abet an abortion.

SIMON: What implications are there in other areas of the law in making abortions illegal?

SEPPER: I think the most immediate implication is for all kinds of medical practice. So emergency physicians are going to encounter people with pregnancy complications that are emergencies but haven't risen to life-threatening conditions. And they will have to sit on their hands until the person becomes so sick that their life is at risk.

SIMON: Could these laws add up to making abortion a homicide?

SEPPER: Yes. So in the early 2000s, the Texas legislature changed our homicide statute to include unborn children. But there was an exception for lawful medical procedures performed by a physician. Now that virtually all abortions are unlawful, virtually all abortions can be classified as homicides under Texas penal law.

SIMON: And Texas is a death penalty state, isn't it?

SEPPER: Yes. Homicide at the very highest levels comes with the death penalty here.

SIMON: Elizabeth Sepper is a professor of law at the University of Texas, Austin.

Thanks so much for being with us.

SEPPER: Thanks for having me on the show. Transcript provided by NPR, Copyright NPR.

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Scott Simon is one of America's most admired writers and broadcasters. He is the host of Weekend Edition Saturday and is one of the hosts of NPR's morning news podcast Up First. He has reported from all fifty states, five continents, and ten wars, from El Salvador to Sarajevo to Afghanistan and Iraq. His books have chronicled character and characters, in war and peace, sports and art, tragedy and comedy.