Did the 1973 Roe v Wade ruling from the Supreme Court ‘repeal’ existing bans on abortion in state statutes? Not in Texas, anyway. The state supreme court last night reversed an injunction by a Harris County judge that had blocked enforcement of the 1925 statute banning abortions.
The upshot is that abortions are illegal in Texas, again:
The Texas Supreme Court late Friday night allowed a 1925 law banning abortion to take effect, overturning a lower court ruling that had temporarily blocked it.
The decision was the latest in a series of legal battles across the country following the Supreme Court ruling on June 24 that overturned Roe v. Wade, a half-century-old ruling that had established a nationwide constitutional right to an abortion.
In Texas, that meant a 1925 law written before Roe, which had banned abortions and punished those who performed them with possible imprisonment, automatically came into effect, said Ken Paxton, the state’s attorney general. Though not enforced after the 1973 Supreme Court ruling on Roe, it had nevertheless remained on the books.
That ban was temporarily blocked by a Harris County judge after abortion clinics sued for a stay, arguing that it had effectively been repealed after the landmark Roe ruling.
That is a curious argument in the first place. The decision in Roe may have looked like legislation, but it wasn’t, and it didn’t remove a single statute in any state. A Supreme Court decision can block enforcement of a statute, but it can’t repeal it. It takes an act of the legislature and the signature of a governor to repeal a statute (or Congress and the president for federal statutes). The current court would likely scoff at the idea of a statute-repealing impact from its decisions, especially at the state level.