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Since the fall of abortion rights, no abortion provider has been convicted of violating a state ban. Proceedings underway in Texas might soon change that. Last March, Ken Paxton, Texas’ Republican attorney general, filed civil and criminal charges against a Houston midwife, accusing her of performing illegal abortions and practicing medicine without a license. Texas law permits penalties of up to life in prison for performing abortions. The midwife, Maria Margarita Rojas, has responded that the state just can’t prove their case. That’s the argument she made to a Texas court this week as she appealed an order that forced the closure of three clinics where she worked while the litigation continues. This appeal concerns the civil case against Rojas. The criminal case against her is also ongoing, but the questions of inadequate proof that were front and center in Rojas’ civil appeal will play a significant role there too.

Even if an appeals court rules in her favor, Rojas likely won’t be able to reopen the three clinics because of the conditions of her bond, which prevent from her being within a certain distance of the facilities, and because of the suspension of her midwifery license. It’s also possible that the three judges on Texas’ 15th Court of Appeals won’t say that much about the caliber of the state’s evidence, instead focusing its on procedural technicalities or constitutional questions. But the hearing was a first look at whether Texas can prove its case against Rojas. And so far, the state’s case looks far from a slam dunk.

The most obvious obstacles to successful abortion prosecutions are political. Polling has shown consistent support for abortion rights, and even more so since the Supreme Court overturned Roe v. Wade.........

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