The Pre-Civil War Origins of Texas's Abortion Laws

When Mollie Smith learned she was pregnant by her former school teacher, the 20-year-old was “mentally depressed and despondent.” She asked the man who impregnated her to help her seek an abortion.

It was 1897. Options were limited in the rural region of Texas where she lived, along the Red River that would, two decades later, come to form the Oklahoma state line. So Smith’s former teacher got a blacksmith to make a “metallic instrument,” which he used to open her vagina to allow him to insert a 7-inch metal rod inside of her womb.

“She stated that this operation gave her pain, and that for a short time she felt sick and faint, but it soon passed off,” according to court records. Smith also drank a compound of cotton root and oil of rue, and a month later, delivered a stillborn fetus.

At the time, Texas was under a near-total abortion ban that outlawed performing or “furnishing the means for” an abortion, except to save the life of the pregnant patient, punishable by up to five years in the penitentiary.

The law had been on the books for as long as Texas had books, dating back to the creation of the state’s penal code in 1857. It remained in effect, largely unchanged but only intermittently enforced, for the next 116 years until the U.S. Supreme Court ruled it unconstitutional in the Roe v. Wade decision in 1973.

Now, after a reversal from the same court at the end of June, this frontier-era statute is once again the law of the land, leading to a near-total termination of abortion in Texas. Clinics have closed, and citing the vagueness of the law, abortion funds have even stopped paying for the procedure over state lines — state lines which, in some cases, didn’t even exist when the laws were first written.

The laws, often called the “pre-Roe statutes,” are also sometimes mistermed the “1925 laws,” which refers to the year that Texas recodified the statute while reorganizing its penal code.

But the laws actually appeared much earlier, during the brief period when Texas had joined the United States but not yet left for the Confederacy. It was a moment when many states were passing similar restrictions, motivated by a declining white birth rate and encouraged by a nascent medical profession trying to take control of childbirth and reproduction.

How these 165-year-old statutes that have been suspended for five decades will be used in 2022 remains to be seen, said South Texas College of Law professor Charles “Rocky” Rhodes.

“This was legislation that wasn’t really designed for the types of situations that we’re being presented with today,” he said. “It’s just not very clear … to try to figure out what they meant back then.”