Texas abortion foes use legal threats and more laws to increase pressure on providers
No criminal charges have been filed under two current Texas laws restricting abortion, but abortion opponents are looking to build on the momentum of recent victories, including the Supreme Court overturning Roe v. Wade.
Texas anti-abortion conservatives are intensifying their efforts to shut down access for residents seeking abortions, with a near-daily drumbeat of threats and court filings aimed at donors, employers and others trying to help those patients.
They are part of a broad campaign by the anti-abortion rights movement, in the days since the U.S. Supreme Court reversed the constitutional right to abortion last month, to dry up avenues of assistance for Texans who have no access to abortion under several state laws and punish providers who have tried to legally continue offering services in a constantly changing legal landscape.
In their crosshairs are not just providers, but also nonprofit funding groups and the donors who support them; people who volunteer time or give money to abortion providers; employers who support pregnant workers in getting abortions, and the abortion clinics and employees themselves.
“Any person who was complicit in these illegal abortions—including [provider] Whole Woman’s Health employees, volunteers, and donors, and anyone who aided or abetted these illegal abortions in any manner, apart from the formerly pregnant woman upon whom the illegal abortion was performed — is equally liable under the Texas Heartbeat Act and equally guilty of murder,” reads a recent court filing by attorney Jonathan Mitchell, the legal architect of many of those efforts, including Senate Bill 8, a Texas law that bans abortions after a fetal heartbeat is detected by allowing citizens to sue suspected violators.
When the Supreme Court decision in June to overturn Roe v. Wade becomes official, expected later this summer, a Texas “trigger law” goes into effect that criminalizes abortion providers for performing illegal procedures and exposes them to a potential sentence of life in prison.
The trigger law does not address those who “aid and abet” abortions, but those groups and individuals are included in SB 8, as well as a century-old law criminalizing abortion that went back into effect earlier this month after being suspended for decades after Roe took effect. That 1925 law carries penalties of up to 5 years in prison for anyone who performs or assists an abortion.
No criminal charges have been filed under the 1925 law, and the state’s trigger law hasn’t been activated yet, but most abortion providers and funding groups have shut down or paused their operations or moved out of state.
When the trigger law takes effect, the state will have at least three separate laws on the books that collectively make abortion from the moment of conception illegal in Texas, in almost all cases, and hold violators liable either civilly or criminally.
But abortion opponents are ready to ask for more, threatening new laws that would extend Texas abortion laws beyond state lines, widen prosecutors’ powers to pursue abortion cases and further criminalize anyone who tries to help Texans get abortions.
“I think they’re emboldened, and I also think that frankly, the base that they’ve become dependent on is going to demand that they just keep going,” said Dallas attorney Elizabeth Myers, who represents Lilith Fund, an abortion funding group and advocacy organization that is among those being targeted in civil court filings and by Texas legislators. “They will go until the court says no.”
On the civil side, courts in conservative Denton and Jack counties are likely to start hearing arguments in the coming weeks over whether to let Mitchell interview, under oath, two major funding groups about their involvement in potentially illegal procedures under both the 1925 law and SB 8. A similar request was filed by Mitchell in Howard County last week targeting abortion providers.
If that effort is successful, the information and documents the abortion providers and supporters may be forced to turn over could help anti-abortion rights attorneys build lawsuits against them.
And although civil depositions can’t be legally used in criminal cases, they are public records and could be easily obtained by local prosecutors seeking an evidentiary road map for their own criminal cases.
Court rulings bring confusion over what's legal
Last month, a Harris County district judge issued a temporary restraining order that barred Texas Attorney General Ken Paxton, the state medical board and district attorneys in Texas’ five most populous counties, as well as Hidalgo County, from enforcing the 1925 law.
That decision caused clinics in those counties to resume abortions for five days, despite Paxton's threat to prosecute them and their allies if the Texas Supreme Court overruled the lower court — which it did by the end of the week. That July 1 ruling allowed Paxton to enforce the 1925 ban, but it did not address the lower court's decision that blocked the law's enforcement in the six urban counties.
Clinics in those counties shut down anyway out of fear that Paxton's office would take action against them, even if local district attorneys could not. Meanwhile, neither court ruling blocked prosecutors in the state’s other 248 counties from enforcing the 1925 law, a Texas Supreme Court spokesperson told the Tribune in a statement.
Although no criminal charges have been filed yet under that law, abortions performed during that week in late June and early July after the Harris County judge's ruling will likely be at the crux of some of the first civil, and potentially criminal, abortion cases in Texas, Myers said.
“I will be absolutely shocked if there is not some sort of criminal prosecution that happens in the next several months,” Myers said. “Which is a terrifying thing to say. But that’s where they’re going.”
Letter to law firm threatens action under 1925 law
If the laws aren’t there now to support everything the abortion foes want to do, they may soon be.
With four months to go before statehouse elections and then two more after that before the new legislative session convenes in Austin, legislation is already being drafted to severely curtail the abilities of companies to aid employees with travel costs or other services that would help them circumvent state abortion laws, including threats to disbar lawyers that attempt to help their own employees.
There is also the potential for proposals that try to ban pregnant Texans from getting abortions anywhere, both inside Texas and outside state lines.
Suggestions of what’s to come can be found in a letter that the Freedom Caucus — a group of Texas Republican House members who are among the chamber’s most conservative — sent last week to the law firm Sidley Austin LLP, one of many employers that have announced plans to support employees who need to travel out of state to terminate their pregnancies.
The lawmakers — who are also lawyers — warned that it’s already illegal under Texas law for people to leave the state to obtain abortion-inducing medicines, then take them at home in Texas. The medicines are often administered at home and over the course of more than one day.
The letter says that if the law firm reimburses travel expenses or otherwise helps an employee in doing that — or similarly circumventing state law — they are violating the 1925 law.
“Conduct yourselves accordingly,” the letter warns.
It also accuses Sidley of already breaking the law and warns that they are subject to civil and criminal prosecution under a section of the ban that specifically targets anyone who knowingly “furnishes the means” for an illegal abortion.
“We are putting them and others on notice of the illegality and consequences of their actions under pre-Roe statutes,” the group said in a statement.
The letter also says the lawmakers are planning to propose legislation that would allow district attorneys from anywhere in the state to prosecute abortion violations outside their own jurisdiction if the local DA refuses, as several have, to enforce the state’s new abortion laws.
The question of whether any of that is even constitutional isn’t much of a deterrent, Myers said, as evidenced by years of attempts to pass legislation that opponents say tramples on abortion rights.
“They do not care if anything is ultimately unconstitutional, or even if they lose, because they get the benefit of terrorizing people through a fear campaign,” she said. “The fear and the threats have been ratcheted up, but the tactic of the fear campaign is identical to what they’ve been doing for years.”
Whole Woman’s Health and Alamo Women’s Reproductive Services, two prominent Texas providers, announced this month that they were moving out of Texas — even as Mitchell filed court documents almost two weeks ago in Big Spring seeking to depose some of their officers in anticipation of suing them.
The petition accuses the providers and their financial supporters of murder and seeks to gather information from them that may help with lawsuits against them on behalf of Texas citizens seeking to enforce SB 8.
Mitchell also wants the right for attorneys to question the executive director of the Texas Equal Access Fund and the deputy director of the Lilith Fund for the same reason.
Both organizations have paused their funding that helps Texans pay for abortions.
Mitchell’s requests to have the two funds deposed, filed in February in Denton and Jack counties, are expected to be set for a hearing in early August.
If lawsuits against them are eventually filed under SB 8 and are successful, each defendant could be penalized at least $10,000 in damages per violation plus court charges.
Neesha Davé, the deputy director at Lilith Fund whom Mitchell wants to question, said it’s not enough for abortion rights opponents to have won the battle to stop abortions in Texas. They also want punish and put out of business anyone who has ever helped, or even intended to help, Texans seeking abortion, she said.
“They are ruthless in their purpose of achieving that,” Davé said. “And they will stop at nothing.”