United States District Court, Texas: While deliberating over instant matter wherein several non-profit Texas abortion funds sued Texas Attorney General Ken Paxton and a proposed class of district and county attorneys (“local prosecutors”) in their official capacity, for alleged violations of their constitutional rights, the District Court’s , Austin Division’s Judge Robert Pitman held that, while Ken Paxton has enforcement authority under H.B. 1280, the statute does not regulate abortions that take place outside the State of Texas and cannot even be arguably read to do so. By contrast, the pre-Roe laws do arguably proscribe plaintiffs’ desired conduct, but the Court found that the pre-Roe laws have been repealed by implication and granted the motion in part to enjoin the named local prosecutors from enforcing the pre-Roe laws.
This case concerns several non-profit Texas abortion funds and one physician who have alleged that Texas Attorney General and other local prosecutors had made several statements vis-à-vis funding abortions, which chill the plaintiff’s First Amendment rights. It was further alleged that these impugned statements restrict the plaintiff’s ability to facilitate out-of-state abortions, which is protected by the right to interstate travel.
Additionally, it was argued that Ken Paxton’s actions (interviews, tweets etc.) and the threats of prosecution have restricted the plaintiff’s ability to travel across state lines and provide abortion services where they remain legal.
The plaintiffs, thus, request an injunction which, among other things, would enjoin defendants from punishing organizations for facilitating abortions outside Texas.
Texas’ Anti-abortion statutes, namely- Health and Safety Code (“H.B. 1280”); former Articles 1191, 1192, 1193, 1194, and 1196 of the Texas Penal Code (the “pre-Roe abortion laws”); and the Texas Heartbeat Act, (“S.B. 8”); were also challenged by the plaintiffs.
The plaintiffs also testified that due to Texas’ anti-abortion laws, especially S.B-8 and after SCOTUS’ decision in Dobbs v. Jackson Women’s Health Organisation, 2022 SCC OnLine US SC 9, which effectively overruled Roe v. Wade, 1973 SCC OnLine US SC 20, the plaintiffs stopped providing resources to callers and began simply referring them to online websites and other third parties. Fund Texas Choice has been unable to “offer practical support” out of fear of “civil and criminal prosecution,” in large part because of “General Paxton’s advisory” that the pre-Roe laws were valid. In addition, it was stated that Fund Texas Choice has received communications from its donors saying that they will not donate because of the potential for criminal and civil liability. Fund Texas Choice expressed concerns that if the District Court does not provide them with any relief allowing it to support Texans in need of abortions, then they may have to shut down.
Court’s Assessment and Findings
The Court noted that plaintiffs seek an injunction prohibiting Defendants from pursuing civil or criminal penalties for any conduct related to abortions obtained outside the State of Texas and that the Attorney General of Texas has filed a motion to dismiss, asserting that Plaintiffs lack standing and that their claims are barred by sovereign immunity.
The Court first discussed that whether the plaintiffs standing and claims vis-à-vis afore-stated ant-abortion laws. It was noted that there is no doubt that they intend to speak about and fundraise for Texans who seek abortions in other states. These speech and fundraising efforts are plainly afforded constitutional interests by the First Amendment. “Because Plaintiffs have demonstrated a clear intent to engage in conduct afforded a constitutional interest, there is no question that Plaintiffs are suffering a substantial and ongoing injury”.
The Court further noted that plaintiffs have shown that they face a substantial threat of prosecution from Ken Paxton, as his suggestion that he will use the “full force” of Texas’s abortion prohibitions, has substantially chilled the plaintiffs’ activities. Plaintiffs have further shown that a delay in relief would potentially result in their organizations being forced to shut down. The Court found that these fears are genuine and demonstrate serious hardship especially considering the severe punishments enshrined in HB-1280, which requires the Attorney General to bring civil prosecutions with fines starting at $100,00.00 up to an unlimited amount.
While assessing that whether the challenged laws authorise Ken Paxton to prosecute the plaintiffs’ conduct, the Court noted that the express language of the statutes task the Attorney General with enforcement of the laws and its civil penalties. However, the Court also pointed out that just because Paxton is authorized to enforce H.B. 1280 does not mean that he can pursue civil penalties for plaintiffs’ particular activities. Upon analysing the language of the H.B. 1280, the Court noted that there is no ambiguity that it regulates abortions occurring within the boundaries of Texas and has no extra-territorial operation. Plaintiffs only wish to facilitate out-of-state abortions, so H.B. 1280 does not authorize civil or criminal prosecution against that conduct.
The Court noted that some of the pre-Roe Laws arguably do cover extraterritorial abortions- First, the direct ban on abortion, Article 4512.1, falls under a similar analysis as H.B. 1280. It does not evince any intent to apply extraterritorially and as such, does not appear to prohibit out-of-state abortions on its own. In this way, Plaintiffs have standing to maintain a suit against the local prosecutors. The remainder of Texas’s pre-Roe laws create ambiguity. However, it was pointed out that Texas’ interest in enforcing the pre-Roe laws is minimal because they have long ago been repealed.
The Court noted that Plaintiffs have not pled the elements necessary to establish associational standing. Yet this does not affect the Court’s resolution of either the motion to dismiss or motion for preliminary injunction, as plaintiffs only assert rights that they maintain as organizations. It is well-established that non-profits maintain a First Amendment right to speech. Thus, the Court found that plaintiffs lack standing to assert the rights of their staff or volunteers but do have standing on organizational grounds.
The Court noted that federal courts should be particularly reluctant to abstain in facial challenges regarding First Amendment rights. First Amendment seeks to protect and potentially moot the state court’s ability to resolve the question at all. Since the plaintiffs bring a facial challenge under the First Amendment and assert an ongoing chill on their protected speech, it would be inappropriate to abstain. Finally, the Court noted that the question presented by plaintiffs that whether the First Amendment protects the right to speak about conduct that is lawful in other states, implicates profound federal interests.
[Fund Texas Choice v. Ken Paxton, 1 : 22-CV-859-RP, decided on 24-02-2023]