Federal judge advances lawsuit over Texas abortion funds

AUSTIN, Texas (CN) — A federal judge in Austin gave a small win to a group of Texas abortion advocacy groups who say they are being unconstitutionally barred from providing "financial, logistical, emotional, and travel assistance to pregnant Texans" seeking abortions.

The case, brought by Fund Texas Choice and others, takes aim at Senate Bill 8, a 2021 Texas law that allows private parties to bring lawsuits against any person who "aids and abets" an abortion. Under that law, private parties can seek damages of at least $10,000 for any instance where someone aids, abets, induces or performs an abortion.

Far from just banning abortions, critics say SB 8 unconstitutionally criminalizes a range of abortion-advocacy activities, including speech. Paying for someone to travel to Colorado for an abortion is theoretically illegal under the law, for example, as is talking to people in Texas about their abortion options.

In a ruling Thursday, U.S. District Robert Pitman, a Barack Obama appointee, seemed to at least partially agree. Declining to dismiss their case, he ruled the groups could proceed with their lawsuit against a variety of parties who had threatened to enforce SB 8.

From the start, the unusual enforcement mechanism in SB 8 has proved a challenge for abortion advocates. Since the law is designed to be enforced by private citizens — not government officials — advocates have struggled to get injunctions blocking it or similar laws.

That difficulty is by design. Jonathan Mitchell, the architect behind this anti-abortion legal strategy, outlined his thinking in a 2018 article for the Virginia Law Review.

Since the private citizens who "enforce the statute are hard to identify until they actually bring suit," he reasoned, it would be "practically impossible to bring a pre-enforcement challenge" to a law like SB 8 — even if the law was clearly unconstitutional.

So far at least, that strategy has panned out. The Texas city of Lubbock used this loophole to effectively ban abortions through a voter-approved ordinance in 2021.

Planned Parenthood quickly sought an injunction against the law, but a federal judge declined to give them one. Since the law was enforced not by Lubbock officials but by private citizens via lawsuits, he reasoned, there was no way for him to bar such lawsuits — even if he gave the group "everything they wanted."

In this case, abortion advocacy groups tried a different tack. Rather than seeking an injunction against just government officials, they filed suit against a range of people who had threatened to enforce SB 8.

Among them were the "SB 8 defendants," private citizens in Texas who had "threatened to enforce SB 8 against certain Plaintiffs for their assistance with in- and out-of-state abortions." They also sued "prosecutor defendants" — that is, "various district and county attorneys in Texas" who are "authorized to pursue criminal charges under the Texas pre-Roe statutes" for abortion-related crimes.

Initially, the groups also sued Ken Paxton, Texas' hard-right and anti-abortion attorney general. Paxton successfully removed himself from the case in February, after a court determined he did not have "any enforcement authority" under the law.

Susan Deski, a county attorney for Burleson County, is now the lead defendant in the case. Among the groups suing are The Lilith Fund for Reproductive Equity, Frontera Fund, Jane's Due Process, the Clinic Access Support Network and Dr. Ghazaleh Moayedi, a high-profile obstetrician based in Dallas.

Handing those groups a win on Thursday, Judge Pitman found the remaining defendants had not provided solid legal arguments for why the claims against them should be dismissed. Instead, he found the plaintiffs had met their threshold for injury by showing that a "credible threat of prosecution" was potentially limiting constitutionally protected activities.

He also found these injuries are traceable to defendants, who were now empowered to enforce pre-Roe abortion laws (in the case of the prosecutor defendants) or SB 8 (in the case of the private citizens). Last but not least, Pitman determined the venue in the case is proper, as both the advocacy groups and those threatening to sue them were based in the Western District of Texas.

Follow @stephentpaulsen

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