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Fifth Circuit spares Texas AG Paxton from testifying in abortion suit

After months of avoiding subpoenas, Texas Attorney General Ken Paxton will not have to testify in a case concerning his ability to prosecute groups that aid Texans in obtaining an out-of-state abortion.

NEW ORLEANS (CN) — Texas Attorney General Ken Paxton will not have to testify before a federal judge in a case brought by a group of nonprofit abortion funds that want to help people in the state obtain reproductive care. 

The Fifth Circuit Tuesday granted Paxton's petition to block a lower court's order requiring the Republican attorney general to testify. After initially ruling that Paxton did not need to testify, U.S. District Court Judge Robert Pitman reversed course last month, saying the attorney general could clarify statements he made that led the abortion funds to fear prosecution and cease providing aid.

In response to the abortion groups' lawsuit, Paxton filed a motion to dismiss the case, arguing he cannot be sued as a member of the state government. 

In his 13-page opinion, U.S. Circuit Judge Stuart Kyle Duncan, a Donald Trump appointee, said that because Paxton is a public figure with “greater duties and time constraints than other witnesses,” requiring him to sit for a deposition constituted an undue burden. Duncan also reasoned that the attorney general’s testimony is not required for proceedings in the case to continue.  

“We reject plaintiffs’ argument that Paxton’s testimony is somehow necessary to decide jurisdiction,” wrote Duncan. “Paxton’s jurisdictional defenses can be assessed by reference to Texas law. His personal deposition answers are irrelevant.”

U.S. Circuit Judges Cory Wilson, also a Trump appointee, and Partick Higginbotham, a Ronald Reagan appointee, concurred with Duncan.

The seven abortion fund plaintiffs in the suit offer financial, logistical and educational resources to people seeking to terminate a pregnancy. When the U.S. Supreme Court ended the constitutional right to abortion with its decision in Dobbs v. Jackson Women’s Health Organization earlier this year, the plaintiffs immediately ceased providing services and have put their work on hold for the foreseeable future. 

According to the plaintiffs, Paxton and members of the Texas Freedom Caucus, a socially conservative coalition of lawmakers in the Texas House of Representatives, have signaled through both direct messaging to abortion funds and public comments that any group or individual who aids someone in getting an abortion out of state is subject to prosecution. The abortion funds claim their right to freely travel, speak and associate has been chilled, violating both federal law and the U.S. Constitution. 

Paxton has said publicly that whether in “Denver or Dallas, in Las Cruces or Lamesa” anyone who violates the state’s ban on abortion will be subject to prosecution. However, in court filings and arguments made by state attorneys, Paxton has said that neither he nor prosecutors have the authority to bring such charges against abortion funds.

The abortion fund asked Judge Pitman to issue injunctive and declaratory relief to bar prosecutors from going after them for helping Texas residents travel out of state to get an abortion.

The dispute Paxton's testimony in the case has been ongoing since September. A day before Judge Pitman was to hear testimony from the plaintiffs in the lawsuit, Paxton, according to an affidavit, fled his home in a truck driven by his wife, state Senator Angela Paxton, to avoid being served a subpoena to testify. Paxton claimed in a post to social media that he chose to flee out of a concern for his safety.

The plaintiffs in the case have yet to indicate if they will appeal the ruling. It is also unclear as to when Judge Pitman will release his ruling in the case.

Paxton, who has been embroiled in many of his own legal issues, won reelection to a third term as the Lone Star State's attorney general last week.

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