AUSTIN, Texas (Jan. 14, 2017) – A bill introduced in the Texas House would outlaw abortion in the state and prosecute physicians who illegally perform them, nullifying the Supreme Court decision in Roe v. Wade.

Introduced by State Rep. Tony Tinderholt (R-Arling), House Bill 948 (HB948) would protect unborn children from fertilization up to birth. It also calls on the state attorney general to instruct state agencies to enforce the law “regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions.”

The bill also contains a de facto nullification clause:

Any federal statute, regulation, executive order, or court decision which purports to supersede, stay, or overrule this Act is in violation of the Texas Constitution and the Constitution of the United States of America and is therefore void.

Although the it would classifyy mothers who have abortions, along with physicians who perform them, as guilty of criminal homicide, the law would still allow life-saving procedures if a mother’s life was at risk

The proposed law rests on a precise legal definition of life established within the legislative language.

“Human life” means a human person and is the biological development of the species homo sapiens that begins when a human egg is fertilized by a human sperm and continues to develop as a living organism.

Passage of the bill would undoubtedly set up a confrontation between the state of Texas and the federal government. The Supreme Court has held that states cannot regulate abortions before a fetus is “viable” – generally around 22 weeks.

The opinion of Supreme Court judges notwithstanding, the federal government lacks any constitutional authority to regulate abortions. This clearly falls within the objects James Madison said would remain with the state governments – “objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.”

But in Roe v. Wade, the SCOTUS created a constitutional “right to privacy” out of thin air and enforced it on state governments through the “due process” clause of the 14th Amendment. Justice Byron White captured the absurdity of the ruling in a blistering dissent.

“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

From a constitutional perspective based on the original meaning of the Constitution and the 14th Amendment, HB948 law rests on solid ground. How it would play out in practice, should it pass into law, remains to be seen.


HB948 has yet to be referred to a committee. If passed by a two-thirds majority in both the state House and Senate, the bill immediately becomes law. If only approved by a majority, it would take effect 90 days following the end of the legislative session.

Additional reporting by Mike Maharrey.

TJ Martinell

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