The Volokh Conspiracy
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Texas Abortion Laws Don't Regulate Out-of-State Abortions
From today's decision by Judge Robert Pitman in Fund Texas Choice v. Paxton (W.D. Tex.):
[T]he Court will grant [Texas AG Ken] Paxton's motion to dismiss and grant the preliminary injunction in part. Specifically, the Court finds that while 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, and the Court finds that Plaintiffs have standing to sue the local prosecutors tasked with enforcing those laws. However, turning to the preliminary injunction, the Court finds that the pre-Roe laws have been repealed by implication [citing Judge Edith Jones' opinion in McCorvey v. Hill (5th Cir. 2004)] and will grant the motion in part to enjoin the named local prosecutors from enforcing the pre-Roe laws.
Part of the court's rationale for preliminary enjoining the pre-Roe laws (under the "balance of equities" prong of the preliminary injunction analysis) was that they restrict speech and fundraising about abortions and not just actually performing abortions:
[T]he harms to Plaintiffs are severe—they will be unable to fulfill their core organizational missions, their speech will be suppressed, and they may even be forced to shut down. Texas's interest, on the other hand, is relatively small. Abortion will remain illegal in the state regardless of this Court's holding. The extent to which Texas has a cognizable interest, if any, in preventing abortions which occur outside its borders is not decided by this Court today. Texas's interest in enforcing the pre-Roe laws is minimal because … they have long ago been repealed….
In addition, a preliminary injunction serves the public interest. Where constitutional rights are concerned, "enforcement of an unconstitutional law is always contrary to the public interest[.]" Absent injunctive relief, Plaintiffs' First Amendment rights—and those of Texans more generally—may be chilled ….
Note that charitable fundraising to support illegal conduct is likely to be constitutionally unprotected, I think. But here the court concluded that the fundraising was aimed at supporting legal conduct (since out-of-state abortions aren't legally forbidden by Texas law), and the Court has indeed treated fundraising for legal causes as constitutionally protected, see, e.g., Riley v. Nat'l Fed'n of the Blind (1988) (cited by the court on p. 19).