Abortion funds languish in legal turmoil, their leaders fearing jail time if they help Texans

A sign advertising an organization that offers services to abortion patients on the wall at Whole Womens Health of Austin on Sept. 1, 2021. (Jordan Vonderhaar For The Texas Tribune, Jordan Vonderhaar For The Texas Tribune)

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For years, the Frontera Fund hotline has helped residents of the Rio Grande Valley access and pay for abortions in the region and out of state. But now, callers get just a recorded voicemail message:

“In light of the Supreme Court decision and the uncertainty around Texas law, we are forced to pause funding at this time,” the recording says. “We are working diligently with our lawyers and national partners to get through this crisis.”

As one of two full-time staffers at the Frontera Fund, Cathy Torres has been fielding these calls for years. Now, each missed call breaks her heart a little more.

“I can’t even tell you why it’s still on my phone, because there’s nothing I can do for them,” she said. “It’s just hard to remove it. It’s like a breakup.”

Frontera Fund is part of a coalition of abortion funds that for years have helped Texans pay for abortions, both in Texas and out of state. These small, scrappy nonprofits have seen the demand for their services grow in recent years, always in lockstep with the state Legislature’s ever-tightening hold over abortion access.

But after last Friday’s U.S. Supreme Court decision overturning the 1973 Roe v. Wade decision that legalized abortion, abortion funds’ work came to a screeching halt.

The groups changed their outgoing voicemail messages, updated their websites and deployed social media posts, all with a similar message: Due to the uncertainty surrounding Texas abortion laws, the state’s abortion funds had stopped funding abortions.

“It’s painful,” Torres said. “Even though we knew it was coming and knew what it was going to be, it’s more painful than I could even tell you.”

Nothing in Texas’ tangled web of anti-abortion laws — including laws from before 1973 and a “trigger law” passed last year — explicitly outlaws their work paying for Texans to access abortions outside the state.

But the laws don’t specifically allow it either, and Texas’ anti-abortion advocates have made it clear they’re eagerly awaiting the chance to test these laws — and their criminal penalties.

The Supreme Court’s overturning of Roe v. Wade removed the decadeslong legal protection afforded to abortion providers, leaving their fates in the hands of local elected prosecutors and their interpretation of confusing state laws.

With abortion soon to be entirely inaccessible in Texas, abortion funds will become a more critical resource for Texans who need help leaving the state — and a more prominent target for anti-abortion advocates trying to stop them.

Staff at these abortion funds don’t believe their assistance to patients seeking abortions outside the state is illegal, and they also aren’t willing to take the risk to find out.

“We need to keep ourselves and our communities safe,” Torres said. “It’s painful in so many ways, but we know that our safety comes first.”

Legal landscape

Last week’s Supreme Court decision gave Texas’ Republican elected officials a victory their party has been working toward for 50 years: the chance to set their own laws banning abortion.

Those same elected officials promptly plunged the state into a chaotic morass of conflicting laws that confounded lawyers, experts and abortion advocates alike.

“We’re struggling to even understand what the laws are and what this means for us because it’s all written so vaguely,” Torres said. “And of course, that’s on purpose.”

In 2021, the Texas Legislature passed a “trigger law” that will make performing an abortion a second-degree felony punishable by up to life in prison. That law goes into effect 30 days after the Supreme Court opinion becomes official, which will take at least another 25 days.

However, Attorney General Ken Paxton said in an advisory Friday that some prosecutors may immediately pursue criminal prosecutions based on violations of Texas abortion laws predating Roe v. Wade that the Legislature never repealed.

“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” Paxton wrote. “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”

These pre-Roe statutes carry less significant penalties — two to five years in jail, compared to five years to life — but are much broader, penalizing not only someone who performs an abortion, but anyone who “furnished the means” for one.

[Pandemonium, then silence: Inside a Texas abortion clinic after the fall of Roe]

Fear of criminal charges under those pre-Roe statutes prompted abortion clinics to immediately stop performing abortions on Friday. Texas abortion funds also stopped paying for abortions, citing legal confusion over whether such activity would violate the statutes.

Courts have now begun what could be a long and bitter process of sorting out which Texas laws — the old pre-Roe criminal laws, the six-week ban enforced through civil lawsuits or the looming criminal “trigger” ban — will take precedent.

On Tuesday, a Harris County district judge ruled that the pre-Roe abortion ban “is repealed and may not be enforced consistent with the due process guaranteed by the Texas constitution.” Some clinics involved in that legal challenge said they would immediately resume abortion procedures; Paxton said he would immediately appeal.

This ruling sets an important precedent for other legal challenges but applies only to the clinics named in the lawsuit and does not directly protect abortion funds. And the abortion funds are worried about something far more potentially damaging than a civil suit — a test case in criminal court.

“The threat of felony prosecution is a real thing,” said Elizabeth Myers, a partner at the law firm Thompson Coburn who represents abortion funds. “It’s going to be very difficult for anyone to take on the threat of criminal prosecution in order to test these theories because the harm inflicted by the criminal justice system is immediate.”

The consensus among legal experts is that it would be difficult to win a case against an abortion fund that paid for out-of-state care. Supreme Court Justice Brett Kavanaugh tried to forestall the idea of interstate charges in a concurring opinion to Friday’s ruling.

“May a State bar a resident of that State from traveling to another State to obtain an abortion?” Kavanaugh asked. “In my view, the answer is no based on the constitutional right to interstate travel.”

But his opinion did not address the thornier question of paying for someone else to travel out of state to obtain an abortion, and it doesn’t mean a prosecutor won’t try to bring charges against an abortion fund.

“A lot of this is just fear of overzealous and rogue prosecutors in the state of Texas, which is a valid fear,” said J. Alexander Lawrence, a lawyer at Morrison & Foerster LLP who has represented abortion clinics. “There’s a lot of concern that some prosecutor who wants to over-read these laws will go after individuals who help women … leave the state.”

And legal experts say abortion funds are wise to be cautious right now.

“Part of the difference in thinking about legal risk is a question of who you are,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “People who are high profile or organizations that are high profile will have concerns that enterprising anti-choice prosecutors might bring criminal charges against them.”

Previous legal challenges

The advocates who run the Texas Equal Access Fund don’t have to speculate about whether they will be targeted by the anti-abortion movement.

The North Texas abortion fund has been identified as a “criminal organization” in local abortion ban ordinances and received cease-and-desist letters from an anti-abortion lawmaker. In February, it was one of two abortion funds named in a legal petition alleging that it had “aided and abetted” in prohibited abortions.

Through all that, they just kept funding, confident that they could beat back any legal challenges in court. But that all changed on Friday.

“When I first heard that we were gonna have to pause funding, I cried,” said communications director Denise Rodriguez. “Because I knew what that impact was going to have on people, just because of how extreme these folks are trying to be when it comes to trying to stop people from accessing abortions.”

Texas’ abortion funds exist because the state does not make abortion easily accessible and affordable, Rodriguez said.

“We believe that abortion is a fundamental part of health care and that government should cover it, like all other health care,” Rodriguez said. “But if the government isn’t going to do it, we will do it.”

These small nonprofit organizations rely on donations and occasional grant funding to maintain their shoestring staff, who are responsible for organizing volunteers, fundraising, advertising their services and coordinating abortions in Texas and surrounding states.

Lilith Fund, the oldest abortion fund in Texas, was founded in 2001, and its ranks have only grown since, helping mostly low-income Texans access abortions.

But now, these organizations, which are primarily led and staffed by people of color, are trying to figure out what risks they’re willing to take as they balance the need to help pay for abortion care out of state and the very real threat of criminal charges that didn’t exist a week ago.

“We have talked about it and we are talking about it,” Rodriguez said. “But we are also aware that we have a very racist criminal justice system [and] we can’t ignore that.”

And anti-abortion advocates are only ramping up their efforts to criminalize abortion in the wake of Friday’s ruling.

In a press release Tuesday, the anti-abortion group Texas Right to Life claimed they called three abortion clinics on Monday to ask whether the clinics were still providing abortions; according to audio recordings provided to The Texas Tribune, two of the clinics agreed to schedule appointments for the callers.

An employee affiliated with one of the clinics told the Tribune that they canceled all appointments on Friday, only taking phone calls, and remained closed until Tuesday, when they began to offer only ultrasound services, not abortion procedures. The other two clinics did not respond to requests for comment for this story.

Texas Right to Life sent the information to the district attorneys in Harris and Dallas counties, where the clinics are located, pressing them to bring criminal charges.

Prosecutors in some Texas counties have said they don’t intend to bring abortion-related charges. Dallas County District Attorney John Creuzot has said he will not takes these cases, while Kim Ogg, Harris County’s district attorney, told the Houston Chronicle she would decide on a case-by-case basis.

State Rep. Briscoe Cain, R-Deer Park, has said he will introduce legislation that will allow prosecutors in other jurisdictions to bring abortion-related charges if the local prosecutor declines to. Cain did not respond to a request for comment on Wednesday.

He has previously said he will try to target abortion funds as well as businesses that pay for their employees to leave the state to seek legal abortions.

“There’s no federal constitutional right to pay for a woman to leave the state to kill a baby,” Cain wrote on Twitter on Monday.

Other states 

Since Texas banned abortions after about six weeks of pregnancy last September, abortion funds have seen the demand for their services grow exponentially.

They’ve helped Texans get abortions in Oklahoma, Colorado, New Mexico and states even farther afield. In 2021, the Texas Equal Access Fund alone served 1,400 clients who otherwise wouldn’t have been able to afford an abortion.

But still, the cases that stick with them, fund staff say, are those that they weren’t able to help: clients who couldn’t get the time off of work, couldn’t find someone to watch their kids or couldn’t leave the state due to their immigration status.

Add to the list all those clients that they’re currently not able to serve while the new legal battles play out.

“It’s hard to be optimistic right now,” Rodriguez said. “But I think that abortion funds are scrappy. We’ve been able to handle a lot up to now, and we’re lucky to have a strong network across the country.”

Karen Middleton, president of Cobalt, a reproductive rights organization that runs the Cobalt Colorado fund, said she believes her organization can provide assistance to Texans and others in states with restrictive abortion laws to come to Colorado for abortions.

“Everyone is still unclear about the law and how it impacts people outside of Texas,” she said, but “it’s our belief that we will fund anyone who needs care from anywhere.”

After Texas banned abortions after about six weeks of pregnancy, Cobalt Colorado provided assistance directly to Texans who needed to leave the state.

“We will continue to provide support to anyone in Texas who is looking for help,” she said.

Joan Lamunyon Sanford, executive director of New Mexico Religious Coalition for Reproductive Choice, which runs an abortion fund in New Mexico, said the organization likely would begin providing transportation from Texas to New Mexico, rather than helping Texas patients once they arrive.

“We recognize that’s something that we’re going to have to do,” she said.

Meanwhile, Texas abortion funds are trying to find other ways to help. They’re energized by the sudden attention on abortion rights and are trying to mobilize that protest energy into meaningful political advocacy.

And they’re awaiting the day when they get the green light from their lawyers to start funding abortions again.

“I would do anything, anything to be able to fund more abortions, even just for a couple more weeks,” Frontera Fund’s Torres said.

But it’s unclear when that will happen and what it would take to give these funds confidence that they’re not going to face legal liability for their work.

“It’s not a simple question,” said Seth Chandler, a professor at the University of Houston Law Center. “The activism over abortion and the end of Roe v. Wade has thrown us into a new legal terrain where we don’t have a lot of landmarks.”

Reporter Jolie McCullough contributed to this story.

Disclosure: University of Texas at Austin and University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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