A new bill in the Texas Legislature would give Texas Attorney General Ken Paxton the ability to directly prosecute people who get abortions or those who help them.
Texas Sen. Bryan Hughes (R-Mineola), chair of the Jurisprudence and State Affairs committees, introduced Senate Bill 846 in the first week of the legislature in January. The bill greatly expands the Texas Attorney General’s powers, including allowing him to investigate and prosecute people for illegal abortions without being asked.
Under current Texas law. Abortion is illegal after six weeks gestation save for medical emergencies. This includes abortions obtained through mail-order drugs. However, no Texan has been prosecuted for doing so yet.
One possible reason is that local jurisdictions seem reluctant to go after people who have received abortions. Most of the district attorneys in the state’s largest counties openly vowed not to pursue criminal charges for abortions when the right to constitutionally protected reproductive health care was repealed by the U.S. Supreme Court in 2022. To judge by the dockets, they have kept that vow.
Which leaves the Attorney General’s office with no way to prosecute people who receive abortions. By Texas constitutional law, the attorney general can only step in to litigate a case if a local prosecutor refers the case up the chain of command. The all-Republican Texas Supreme Court has repeatedly upheld this separation between local and state prosecutorial power in decisions from 2021 and 1990.
What the Hughes bill would do is allow the Attorney General to step into any case referred to local prosecution that has not been pursued within six months. This approach works hand in hand with another Paxton anti-abortion scheme. Paxton and the Texas Right to Life organization are attempting to recruit men to inform on their pregnant partners and ex-partners for obtaining an abortion. They would then use this information to sue the person who sought or received the abortion, as well as potentially anyone who helped them, under the state’s “bounty hunter” law passed in 2021.
Between the bill and this new initiative, more abortions that violate Texas law would be referred to local prosecutors. With those referents working in close quarters with Paxton and the anti-abortion networks, his office would know exactly when the referral was made and when he could step in six months later. From there, the Attorney General would be able to take the case up the judicial chain, possibly further eroding reproductive health protections thanks to the conservative super majority at the U.S. Supreme Court.
Currently, Hughes’s bill is languishing without action since being filed on January 17. Even if it did pass through both houses and was signed by Governor Greg Abbott, it would likely face a constitutional challenge as it does not amend the Texas Constitution or even put such an amendment up for public vote. In the meantime, Paxton continues to rally resources to put people who receive abortions in jail.
