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.}

Comments

[santamonica811]

Interesting case. I hope you or the other Conspirators keep us readers informed as to its progress.

Relatedly, is there an online list of the states where pro-choice referenda will be on the 2024 ballot? (And/or, states where there's currently an effort to gain enough signatures to have such a referendum placed on that state's 2024 ballot?)

[Sam Bankman-Fried]

I doubt Blackman will ever get laid…but if he does I hope his baby has trisomy 13.

[Dr. Ed 2]

Uncalled for...

[Sam Bankman-Fried]

Trisomy 13 is a blessing.

[SimonP]

This motherfucker in fact has at least one child. I do not know when he finds time to spend with it, but he's mentioned it before.

[Dr. Ed 2]

I want to commend EV for writing a comprehensible summary of this case.

[ReaderY]

I think standing here is fairly straightforward. Whether Texas law covers in-state assistance of an out-of-state abortion is fundamentally a question of state law.

At the standing stage, I think plaintiffs have a plausible argument. It’s noteworthy the Attorney General is not saying the law doesn’t apply to them. This is not a case where plaintiffs are forcing an interpretation on a state against its will. The Attorney General is merely saying he has no current plans to prosecute plaintiffs.

On the merits, I think the District Court should certify the question to the Texas Supreme Court. This is a question of state law and picy, and a delicate and controversial one. I don’t think a federal court can predict what the Supreme Court of Texas will say with any reliability.

[ReaderY]

On the constitutional merits, I think it’s pretty clearly established that a state can prohibit an act undertaken within the state that supports a policy the state disapproves of, even if other acts occur outside the state. A state can for example prosecute a kidnapping occuring within a state for purposes of murder or robbery outside the state as first degree kidnapping. It can prosecute on-line solicitation of minors within the state even if they go to a hotel outside the state to consummate.

I understand abortion is highly controversial, but I don’t see this as any different from ordinary cases where conduct begun within the state is consummated outside it. Ordinary legal rules apply. Under ordinary legal rules, a state can prosecute for the conduct occurring within the state. It may be bad policy, but it’s constitutional.

[SimonP]

The examples you've chosen muddy the analysis, though, insofar as they consider acts that would be presumptively criminal in both states. That is not the case, when we're talking about facilitating travel in one state to receive a legal abortion in another.

Consider something more apropos: neighboring states with dramatically different approaches to the regulation of guns and ammunition. (Setting aside constitutional limits for the sake of argument.) Consider Illinois and Indiana, for instance.

Indiana is broadly permissive, while Illinois is broadly prohibitive. How would we analyze an Illinois law that:

- Makes it illegal for Indiana gun vendors to advertise their businesses within Illinois, or to direct online advertisements to residents of Illinois?
- Makes it illegal for Indiana gun vendors to facilitate travel by Illinois residents to legally purchase guns in Indiana that would be prohibited in Illinois? Even if the purchaser intends only to keep and use the gun in Indiana?
- Makes it illegal for Illinois individuals to organize among themselves, to travel to Indiana in order to legally purchase guns and ammunition there? Even if the only intention is to use those guns there?

I suppose underlying each of my examples is itself an implicit assumption about the putative state "interest" in fetal life. Is the state "interest" in fetal life akin to its interest in protecting children from abuse and neglect, or is it more akin to its interest in regulating public morality and hygiene? That is, are abortion restrictions about protecting fetal life or about regulating women's moral and healthcare decisions? Can the state legislature decide for itself, without principled constraint?

If the state interest in fetal life is akin to its protection of children, then it would be easier to see why laws prohibiting out-of-state travel to get a legal abortion elsewhere could be defensible. But if it's more akin to direct regulation of morality and hygiene, such long-arm prohibitions are less defensible.

That might be one of the interesting ramifications of Dobbs's overruling Roe the way it did. Roe explicitly and famously acknowledged a state interest in protecting fetal life. But if Roe was "egregiously wrong" when decided, it's not clear that the framework used there has any further relevance now. It would, it seems, be a matter of state constitutional law now.

I would argue that, just because the U.S. Constitution is no longer understood to protect a "right to privacy" that encompasses the right to obtain an abortion, it does not follow that states have the right to decide for themselves that they have a right to protect "fetal life" sufficient to justify laws prohibiting out-of-state travel to obtain abortions that are legal where performed. That is a question that must be addressed, with these laws, and its answer not taken as granted.

[ReaderY]

Perhaps a more common, straightforwrd example is laws that prohibit taking minors (as defined by the origin state) to a state or country where the sex act is legal (e.g. the person is not a minor in the destination state or conuntry) for purposes of having sex. I think this is a nuch more on-point example than the ones I came up with above. And it’s a not uncommon situation.

There’s a whole DOJ website on which federal laws regarding sex with minors have “extraterritorial jurisdiction.” Many state laws are modeled on federal law and say exactly the same thing. it isn’t an excuse or defense that the act is legal in the destination state.

https://www.justice.gov/criminal/criminal-ceos/citizens-guide-us-federal-law-extraterritorial-sexual-exploitation-children

[ReaderY]

Yes, states only do things like this on things they really, really feel strongly about, and you obviously don’t think this is or should be such a thing. Very understandably. But that’s a political argument, not a constitutional one.

[ReaderY]

Perhaps the classic example is firing a gun on one side of a state border that kills someone on the other side. If fired in a rural area etc., there’s nothing illegal about firing the gun in and of itself, and the only effects involved are entirely out of state.

[Dr. Ed 2]

Actually no -- at least in Maine, there is "reckless conduct with a firearm." Notwithstanding that, a law professor raised this with a twist, A German fires a rifle in Maine with the bullet going across the bay and kills an Italian (citizen) in Canada. Who has jurisdiction?

He said all four countries -- the US because the bullet was fired from US soil, Canada because that's where the victim died, and both Germany & Italy because their nationals were involved. Reality is whoever has physical custody of the perp gets first dibs unless the diplomats get involved.

BUT ALSO US citizens have been prosecuted for sex tourism (i.e. child molestation) in countries where it apparently is legal. How is that different?

[John F. Carr]

U.S. law is unusual in how much overseas conduct it regulates.

[bernard11]

The Attorney General is merely saying he has no current plans to prosecute plaintiffs.

Cold comfort.

[John F. Carr]

The Attorney General was dropped from the case after successfully arguing that he had no statutory authority over out of state abortions. He would be in a legally difficult position if he later claimed he did have the power to prosecute plaintiffs.

If Texas has banned abortion tourism, enforcement authority belongs to local prosecutors. They want to say for now, we might not do it and you should wait until we do.

[Dr. Ed 2]

Don't most kiddie porn operations solicit the victims in their home states and then transport the children to the "Bright Lights, Big City"? Al I know is cops have said this in presentations to schools.

[SRG2]

Cops say lots of things in schools

[John F. Carr]

I have heard of that happening to teenage girls. I have no reason to think it is common compared to local abuse. Younger kids aren't likely to run away to the city.

But I would bet the biggest source of child porn, in the legal sense, is spontaneous sexy selfies and voluntary webcam performances by teenagers.

[David Nieporent]

No. This has been yet another episode of Simple Answers to Stupid Questions. Why would anyone go to all that trouble? Obviously many victims are victimized by people they know, who aren't taking the kids somewhere far away. And other victims are going to be runaways and other transients.

[Dr. Ed 2]

State agencies don't talk to each other -- or at least didn't used to.
Same thing with going over the border to Canada -- they can run you on the computer. Back in the 1970s they couldn't.

There are parts of NYC, Chicago, & LA where cops aren't welcome.
So it's some girl from Etna. Maine -- Etna would care, Bangor would care, Portland might -- NYC won't.

[Dr. Ed 2]

One other thing -- all of you celebrating Rudy's bankruptcy need to understand that THE EXACT SAME THING is going to happen to abortion folks. Lawfare is a double-edged sword.

[Drewski]

Believe it or not, there is a legal distinction between soliciting someone to an illegal act and soliciting someone to a legal act.

[John F. Carr]

I had not heard of a "Rule 202 Petition". It is a uniquely Texan rule allowing wide-ranging pre-suit depositions. One blogger writes:

The result is that those attempting to use Rule 202 do not always have a legitimate purpose in mind. Certainly there can be a need to investigate first to determine who to even bring suit against when a plaintiff has been injured but does not know the identity of the culprit (and those with the information are not willing to voluntarily cooperate). Others, however, regularly seek to use Rule 202 as a license to engage in a general “fishing expedition” for evidence of claims in the first place, to impose costs as leverage for settlement purposes, or even to try and secure key evidence without the pesky requirement of having an adverse party present to cross-examine the witness.