Abortion-Funding/-Supporting Groups' Challenges to Texas Abortion Laws Can Proceed for Now

The district court just dismissed certain procedural objections to them, though it wasn't asked to consider the substantive arguments.

From today's decision by Judge Robert Pitman (W.D. Tex.) in Fund Texas Choice v. Deski:

This case concerns several Texas abortion advocacy groups that seek to fund or support abortion for Texans in states where it remains legal….

Prior to the Supreme Court's opinion in Roe v. Wade, 410 U.S. 113 (1973), the Texas Penal Code contained Articles 1191, 1192, 1193, 1194, and 119625 (collectively, the "Pre-Roe Statutes"), under which abortion was criminalized….

Beyond the pre-Roe laws, Plaintiffs also challenge the constitutionality of SB 8. The law, which went into effect on September 1, 2021, authorizes private citizens to bring a civil action against any person who performs or "aids or abets" certain abortions in Texas. SB 8 provides that a suit may be brought against a person who "performs or induces an abortion in violation of this subchapter" or any person who "knowingly engages in conduct that aids or abets the performance or inducement of an abortion … if the abortion is performed or induced in violation of this subchapter…"

SB 8 delegates enforcement to private citizens and prohibits governmental officials from enforcing the law. A plaintiff under SB 8 need not have an individualized injury to bring suit. It provides a minimum fine of $10,000 for each abortion but provides no maximum penalty. SB8 purports to limit the effect of the judgments of other courts, including federal courts, by denying the defenses of nonmutual preclusion, claim preclusion (also known as res judicata), and limiting recovery of attorney's fees. SB 8 permits a private plaintiff to bring the case in his or her own county of domicile (if in Texas), regardless of whether that county has any connection to the events alleged or the relevant witnesses and prohibits any motion to transfer venue. The law was designed to avoid judicial review….

Plaintiffs brought suit on August 23, 2022. Plaintiffs initially sued Ken Paxton, in his official capacity as Attorney General for the State of Texas, and several county and district attorneys around the greater Austin area …. The Court issued its order on Plaintiffs' motion for a preliminary injunction and Paxton's motion to dismiss on February 24, 2023. In its order, the Court found that Paxton could  only enforce Texas's abortion restrictions through H.B. 1280 (also known as the "Trigger Ban"). However, it found that H.B. 1280 does not regulate out-of-state abortions, and therefore, Paxton would have no authority to prosecute Plaintiffs for funding or assisting out-of- state abortions. Accordingly, the Court granted Paxton's motion to dismiss.

As to the Austin area prosecutors, the Court determined that they did have enforcement power under the pre-Roe laws. Moreover, the Court ruled that the language of the pre-Roe laws could be arguably interpreted to cover out-of-state abortions, meaning that Plaintiffs could viably claim a genuine threat of prosecution from the Austin area prosecutors. The Court found that it was bound by the Fifth Circuit's holding in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), which held that the pre-Roe laws had been repealed by implication. Accordingly, it preliminarily enjoined the Austin area prosecutors from enforcing the pre-Roe laws against Plaintiffs….

Following the preliminary injunction ruling, Plaintiffs moved to amend their complaint. In their amended complaint, Plaintiffs added their claims against the SB 8 Defendants. {The SB 8 Defendants are private Texas citizens. They have threatened to enforce SB 8 against certain Plaintiffs for their assistance with in- and out-of-state abortions. This includes, among other things, sending Rule 202 Petitions seeking pre-suit discovery against Plaintiffs and other abortion providers.}

Plaintiffs also named several more district and county attorneys as Defendants. They plan to request to certify a class of all district and county attorneys in Texas and to seek permanent injunctions and declaratory judgments holding that the pre-Roe statutes and SB 8 may not be enforced against them for facilitating out-of-state abortions.

Both the Prosecutor Defendants and the SB 8 Defendants have moved to dismiss the complaint. For the most part, the Prosecutor Defendants' motions raise the same arguments. They argue that Plaintiffs' claim is not ripe because they have not initiated or planned to initiate any enforcement proceedings against Plaintiffs. Moreover, they argue the injury is not traceable to the Prosecutor Defendants because it is unrelated to any activity which they have taken. Similarly, Putman, the District Attorney for Smith County, argues that Plaintiffs have not plead a valid injury because the pre-Roe laws do not appear to authorize enforcement against them, Putman has taken no actions to indicate that he will enforce the laws against them, and they will not have their injuries redressed by a decision against him.

Separately, the SB 8 Defendants moved to dismiss on grounds of venue and improper joinder. They argue that the SB 8 Defendants were improperly joined to this action under Rule 20 because the claims do not involve the same transactions or occurrences as the claims against the Prosecutor Defendants. They then argue that venue is improper because the enforcement threats did not occur in Austin or the Western District of Texas. The SB 8 Defendants have not moved to dismiss for lack of subject-matter jurisdiction.

The court rejected all these procedural arguments, in a long opinion. The quick bottom lines:

{[T]he Court finds that Plaintiffs are suffering an injury in fact that is traceable and redressable to the Prosecutor Defendants….

Because the SB 8 Defendants were properly joined, venue is proper in this district. Even without joinder, a substantial portion of the events at issue occurred in the Western District of Texas. Therefore, the Court will deny the SB 8 Defendants' motion to dismiss.}