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Overturning Roe v. Wade could impact future legality of morning-after pill and IVF, Texas law professors say

Texas has a trigger law that would ban abortion, and lawmakers have promised stronger restrictions if Roe v. Wade were overturned.

DALLAS — A leaked draft of a U.S. Supreme Court opinion overturning the landmark Roe v. Wade decision roughly 50 years ago would allow states to make their own rules regarding abortion, but its full impact could go far beyond that.

“The opinion is quite sweeping in its reasoning in ways that question the entirety of our due process protection from things like the right to marry, to the right to parent, to contraception,” Liz Sepper, a health law professor at UT Austin, said.

Sepper believes it could have impacts in the future on morning-after pills like Plan B or IUDs.

“I would not be surprised if Justice Alito thinks the rationale of his draft opinion extends quite directly to emergency contraception,” she said.

Texas is one of 13 states with trigger laws criminalizing abortion, with doctors facing up to life in prison for violations and up to a $100,000 fine. There is an exception if woman’s life is in danger, but people diagnosed with cancer while pregnant or suffering from depression or other medical issues would not qualify.

RELATED: Texas Republicans say if Roe falls, they’ll focus on adoptions and preventing women from seeking abortions elsewhere

“Everyone who has a miscarriage becomes a potential target of the criminal law,” Sepper said. “Criminalizing abortion is going to have... effects, even if the laws don’t change.” 

Texas’ total ban would start 30 days after the decision and describes ‘pregnant’ as the moment of fertilization. In in vitro fertilization there are often multiple embryos destroyed. 

Seema Mohapatra teaches health law and bioethics at SMU and says some definitions in the trigger law still aren’t clear. 

“That could definitely put parts of the whole IVF process at legal risk,” she said. “A lot of people are surprised that restrictions on abortion effect people who are seeking to become pregnant.” 

According to CDC data, roughly 2% of infant born in the US each year are from IVF.

Texas already bans abortion after six weeks with no exceptions for rape or incest. That was part of Senate Bill 8 passed last year, which also allows a person to sue anyone who aids or abets an abortion for up to $10,000. 

“You end up relegating some number of people to unwanted pregnancies, to unwanted parenthood,” Sepper said. “You end up with some people who get access to very unsafe abortions.”

The impact isn’t even. The Kaiser Family Foundation found people of color are 59% of Texas’ population but 74% of those seeking abortion. 

“People that are forced to go through a pregnancy we’ve seen are in a worse economic position and their children end up having worse outcomes because of it,” Mohapatra said. “We’re going to see people who are already disadvantaged more disadvantaged by these laws.”

RELATED: Democrats' effort to secure Roe v. Wade falls to filibuster 

FDA allows mailing and using abortion-inducing medication for 10 weeks. Texas passed a law banning it at seven weeks, but its six-week abortion ban makes that law moot. 

Despite the action from state lawmakers, 78% of Texas voters think abortion should be allowed in some form, according to a recent UT poll.

The impact of a decision overturning Roe v. Wade would be felt immediately, but the biggest changes could be yet to come.

“Texas is poised to pass a lot more legislation related to this and possibly even more expansive legislation,” Mohapatra said. “I think it is important for the public to realize some of these impacts so that they can talk to legislators before these definitions are expanded that have these consequences.”  

The state also passed a seven-week ban on abortion inducing medicine that the FDA allows for up to 10 weeks.

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