Texas does not have a death penalty for abortion. Performing an abortion is a first-degree felony punishable by 5 to 99 years in prison or life, along with a civil penalty of at least $100,000 per violation and mandatory loss of the provider’s professional license. A separate provision of the Texas Penal Code specifically blocks homicide statutes, including capital murder, from reaching abortion, and the pregnant person cannot be prosecuted at all. Several bills have tried to change this and make abortion punishable as capital murder, but none have passed.
What Providers Actually Face
The Texas Human Life Protection Act, codified at Chapter 170A of the Health and Safety Code, took effect on August 25, 2022, after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.1Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization It makes performing, inducing, or attempting an abortion a first-degree felony outside of narrow medical exceptions.2State of Texas. Texas Health and Safety Code Chapter 170A – Performance of Abortion
A first-degree felony in Texas carries imprisonment for life or a term of 5 to 99 years, plus a possible criminal fine of up to $10,000.3State of Texas. Texas Penal Code Chapter 12 – Punishments That is the same sentencing tier as murder, aggravated kidnapping, and aggravated sexual assault. It is not capital murder, and the maximum punishment is life in prison, not execution.
On top of the criminal sentence, Chapter 170A creates a civil penalty of no less than $100,000 for each violation, and the Texas Medical Board or other licensing agency is required to revoke the provider’s license.2State of Texas. Texas Health and Safety Code Chapter 170A – Performance of Abortion The penalties stack per procedure, so a provider tied to multiple abortions faces separate counts and separate civil fines for each one.
Why Capital Punishment Cannot Apply
Texas Penal Code Section 19.06 is the reason the death penalty is off the table. It states that the criminal homicide chapter does not apply to the death of an unborn child when the conduct involves:
- Conduct committed by the mother of the unborn child
- A lawful medical procedure performed by a licensed health care provider with consent, where the death of the unborn child was the intended result
- An assisted reproduction procedure
- The dispensing or administration of a drug in accordance with law
Because of Section 19.06, prosecutors cannot charge an abortion provider with murder or capital murder, no matter the circumstances. The Penal Code does define “individual” to include an unborn child at every stage of gestation, but Section 19.06 overrides that definition for homicide purposes. Capital murder in Texas is punishable by life without parole or death when the state seeks it,3State of Texas. Texas Penal Code Chapter 12 – Punishments but that tier simply cannot reach abortion cases while Section 19.06 stands.
Bills That Have Tried to Change This
Some Texas legislators have introduced bills aimed at removing the Section 19.06 barrier. House Bill 2709, filed during the 88th Legislative Session in 2023, would have redefined “individual” in the Penal Code to cover an unborn child “at every stage of development from fertilization until birth” and required all Penal Code provisions to “apply equally” to offenses against an unborn child.5Texas Legislature Online. Texas HB 2709 – Relating to the Protection of an Unborn Child’s Rights The practical effect would have been to erase the homicide exemption and expose abortion providers to capital murder charges.
HB 2709 was referred to the Criminal Jurisprudence Committee on March 13, 2023, and died there without a vote when the session ended on May 29, 2023. Other bills, including House Bill 810, have followed the same path in earlier sessions: introduction, committee referral, no floor vote. Even among legislators who support the existing ban, capital punishment for abortion has drawn resistance.
The theory behind these bills is an “equal protection” argument: if an unborn child is a person under state law, then killing that person should carry the same penalties as any other homicide. Critics argue that applying homicide law to medical procedures would create constitutional challenges and reach far beyond abortion, into miscarriage investigations and fertility treatment.
The Pregnant Person Cannot Be Prosecuted
Even if a future bill removed the Section 19.06 barrier for providers, Texas law separately shields the pregnant person from any criminal penalty. Section 170A.003 of the Health and Safety Code states that nothing in the chapter authorizes criminal prosecution of, or the imposition of a penalty on, the pregnant person on whom the abortion is performed.2State of Texas. Texas Health and Safety Code Chapter 170A – Performance of Abortion The protection is unconditional.
Section 19.06 reinforces it from a different direction. Its first listed exemption covers “conduct committed by the mother of the unborn child,” which means the homicide chapter cannot reach the pregnant person under any theory.4State of Texas. Texas Penal Code Section 19.06 – Applicability to Certain Conduct Even the proposed capital-murder bills have not sought to remove this maternal immunity. Enforcement in Texas is aimed at providers, not patients.
The Separate Track of Private Lawsuits
Alongside criminal penalties, Texas has a civil enforcement mechanism that predates the trigger law. Senate Bill 8, known as the Texas Heartbeat Act, allows any private citizen to sue a person who performs an abortion or who aids or abets one. A successful plaintiff recovers at least $10,000 in statutory damages per violation, plus attorney’s fees and costs.6Texas Legislature Online. Texas SB 8 – Relating to Abortion
SB 8 is enforced entirely through private lawsuits rather than government prosecution. Anyone can sue, whether or not they have a personal connection to the abortion, and the law specifically reaches people who help pay for an abortion, drive a patient to a clinic, or provide other logistical support. The pregnant person is exempt from these civil suits, consistent with her criminal immunity. This is money damages, not prison and not execution, but it is a real financial risk that sits on top of the felony charge and the $100,000-per-violation civil penalty under Chapter 170A.
The bottom line for anyone searching this question: Texas punishes abortion severely, but the death penalty is not among the punishments available under current law, and the pregnant person is not prosecuted at all.