Abortion funds remain protected from prosecution

Good news, in the kind of world where this is needed at all, for now.

A federal judge issued a favorable ruling for Texas abortion funds, indicating they likely cannot be criminally charged for helping people travel out of state to terminate their pregnancies.

U.S. District Judge Robert Pitman temporarily blocked prosecutors in eight counties from pursuing charges against anyone who helps someone get an abortion outside of Texas. But his ruling indicated he believes the laws he has enjoined them from enforcing may not actually be in effect at all.

This lawsuit, filed two months after the overturn of Roe v. Wade, was brought by abortion funds, nonprofit groups that help pay for abortions and related expenses, including out-of-state travel, hotels and child care.

After the overturn of Roe v. Wade, the funds stopped paying for Texans to leave the state, citing their fear of being prosecuted under the state’s intersecting abortion bans. In the lawsuit, they cited examples of Attorney General Ken Paxton and state lawmakers expressing an intent to bring charges against abortion funds.

But Pitman ruled Friday that Paxton could not enforce Texas’ abortion bans against anyone who helped pay for an abortion out of state and dismissed him from the suit.

Pitman analyzed Texas’ three abortions laws: the ban on abortions after about six weeks of pregnancy, commonly known as Senate Bill 8; the so-called trigger law, which went into effect in July; and the pre-Roe statutes, which were in effect before the U.S. Supreme Court deemed them unconstitutional in 1973.

Since SB 8 is enforced through private civil lawsuits, neither Paxton nor local prosecutors play any role in enforcing that statute, Pitman noted.

Paxton and the district attorneys do have the power to enforce the trigger law, which comes with a sentence of up to life in prison and a minimum $100,000 penalty. The law criminalizes anyone who performs an abortion, except to save the life of the pregnant person.

But it cannot be enforced beyond state lines, Pitman found.

The law “does not express any intent, much less a clear one, to apply extraterritorially,” he wrote. “Accordingly, there is no plausible construction of the statute that allows the Attorney General or local prosecutor to penalize out-of-state abortions.”

That leaves only the pre-Roe statutes, which come with sentences of two to 10 years in prison for anyone who performs or “furnishes the means for” an abortion. Pitman found that the laws could potentially be interpreted to criminalize someone in Texas who helped someone pay for an abortion out of state.

“In other words, if an abortion takes place outside of Texas, a plausible (albeit unlikely) construction of the statute authorizes prosecution for ‘furnishing the means’ of that abortion if that ‘furnishing’ takes place in Texas,” Pitman wrote. “The pre-Roe laws prohibit ‘furnishing the means’ within the state, and do not necessarily limit that prohibition to abortions which occur in Texas.”

Pitman enjoined the named district attorneys — who represent Travis, Washington, Blanco, Burnell, Llano, San Saba and Caldwell counties — and a county attorney, representing Burleson County, from enforcing the pre-Roe statutes against the abortion funds while the case proceeds.

There is no civil penalty associated with the pre-Roe statutes, so Pitman dismissed Paxton from this line of inquiry — and thus the entire suit.

But in the ruling, Pitman also argued that the pre-Roe statutes have been repealed and therefore cannot be used to prosecute anyone.

See here for the background. I assume the Travis County DA, which was never going to willingly prosecute anything abortion-related, is there for technical reasons having to do with where state government and by extension the AG reside. This Reuters story has a couple of paragraphs that add a bit of clarity:

Pitman’s order, which is preliminary, will remain in place while abortion funding groups, including Fund Texas Choice, The North Texas Equal Access Fund and The Lilith Fund for Reproductive Equity, move forward with a lawsuit seeking to block enforcement of the laws.

The order applies only to five individual local prosecutors who are named as defendants in the case, though the groups have said they will seek to expand their case to include a class of all local prosecutors in the state. Pitman said that he could issue an order applying to a broader group of prosecutors in the future, after they have had a chance to appear in court.

In other words, this is a first step and there will be more cases like these to get injunctions against other prosecutors while the case gets argued on its merits for a final ruling. And then there will be appeals – there was no indication in the news as of Saturday that an appeal was planned, but by now we all know how this goes. I expect there to be more news about this, in the medium term if not the short term. Isn’t everything so much simpler now that the question of abortion access has been left up to the states? Reason has more.

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