Texas AG’s office sends mixed signals about whether it can fine nonprofits that pay for out-of-state abortions

Texas Attorney General Ken Paxton, center right, walking from the U.S. Supreme Court to a press conference in April. (Eric Lee For The Texas Tribune, Eric Lee For The Texas Tribune)

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A federal judge heard arguments Tuesday about Texas Attorney General Ken Paxton’s role in enforcing the state’s abortion laws — and whether Paxton should be called to the stand to explain things himself.

The lawsuit was brought by a group of nonprofits, called abortion funds, that help Texans pay for abortions in states where the procedure remains legal. The abortion funds argue that Paxton’s statements since the overturn of Roe v. Wade, coupled with the actions of conservative lawmakers, have made them so fearful of potential criminal and civil penalties that they have stopped their work.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

Pitman is expected to rule on the request for a preliminary injunction in the coming weeks but in the meantime is also considering a motion to require Paxton to testify himself. Before the hearing Tuesday, Pitman quashed a subpoena seeking the attorney general’s testimony, but lawyers for the plaintiffs have asked him to reconsider. Paxton fled his home Monday to avoid being served with the original subpoena.

The lawsuit also seeks clarity on whether a Texas-based abortion provider can perform abortions for Texans in other states where the procedure remains legal, or provide telehealth services from Texas to patients in other states.

On that question, the attorney for the state was even less definitive about whether the attorney general would try to enforce the civil penalties in the law, saying that situation was not amenable to a clear “up or down” answer but would have to be handled on a case-by-case basis.

Legal confusion

A year ago, when Texas banned most abortions after about six weeks of pregnancy, abortion funds stepped up to help Texans leave the state to continue to access abortions. Their hotlines were flooded with calls — people who needed to get to Oklahoma or Kansas or New Mexico to access abortions they could no longer get in Texas.

These small nonprofits rely mostly on donations and volunteers, who flooded in after the law went into effect. Several of them added staff and scaled up their operations to accommodate the increased need.

But their high-profile work came with backlash. State Rep. Briscoe Cain, R-Deer Park, sent them cease-and-desist letters, claiming that their work was in violation of pre-Roe abortion laws that had never been repealed, and started using #ProsecuteTexasAbortionFunds on Twitter. Anti-abortion activists also targeted two abortion funds for potential lawsuits.

The funds were undeterred, continuing to help thousands of Texans seek abortions in surrounding states.

But all of that changed when the U.S. Supreme Court overturned Roe v. Wade in late June, allowing states to set their own laws on abortion. Immediately, Paxton issued guidance that said prosecutors could “immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

“Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today,” Paxton wrote.

But those pre-Roe statutes don’t criminalize just abortion providers — they also criminalize anyone who “furnishes the means” for an abortion, punishable by up to five years in prison.

Immediately, abortion funds in Texas stopped their operations, citing confusion over whether paying for abortions out of state constituted furnishing the means for an illegal abortion. As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.”

Their fears were exacerbated, according to testimony, when a group of conservative lawmakers in the Texas House, including Cain, issued a letter to Sidley Austin, a prestigious law firm that had offered to pay for its Texas-based employees to travel out of state to get abortions. In the letter, the lawmakers threatened the law firm with criminal prosecution for their actions.

Based on these indications from Paxton and lawmakers, “we believed we would be prosecuted, to be frank,” Anna Rupani, the executive director of Fund Texas Choice said Tuesday.

This freeze on their work came with other consequences, according to Tuesday’s testimony. Several of the funds said they had lost donors or had to spend more time reassuring donors who were confused and worried. Some said they had lost staff or board members over fear of criminal prosecution.

Lawyers for the state, though, argued that this chilling effect was “self-imposed” and “unreasonable.” None of the people the abortion funds cited threats from — Cain, the other legislators or Paxton himself — have the ability to bring criminal charges against anyone.

Only district and county attorneys can bring criminal charges in Texas; the prosecutors named on this lawsuit have agreed not to press charges against abortion funds for paying for out-of-state abortions until the case is fully resolved.

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

In 2021, the state Legislature passed a so-called “trigger ban” that went into effect 30 days after the U.S. Supreme Court certified its judgment overturning Roe v. Wade.

The trigger law comes with heightened criminal penalties — up to life in prison — and says that the attorney general “shall” seek civil penalties of at least $100,000 per abortion.

The trigger law criminalizes only the person who “performs, induces or attempts” an abortion. As the state pointed out in court Tuesday, there are no penalties for “furnishing the means” or “aiding and abetting” in an abortion, unlike in other Texas abortion laws.

But Paxton has alluded to wanting to find ways to use these civil penalties against people who pay for abortions out of state. In a TV interview with NewsNation, Paxton was asked about companies that are paying for employees to leave the state to get abortions.

“We’re going to be looking at whether the language covers at least the civil side, and that’s obviously what we can deal with,” Paxton said. “These penalties could even be for corporations, over $100,000 per violation. So we’re looking at that literally as we speak.”

Lawyers for the state disputed that concern Tuesday, saying that “for the most part,” the activities that abortion funds want to resume would not put them in danger of civil penalties from the attorney general’s office.

But in their filings in response to the lawsuit, the state wrote that they see penalizing people who help pay for abortions out of state as “a means to an end — the protection of human life, including the life of the unborn.”

“That interest continues whether the Texan mother seeks an abortion in Denver or Dallas, in Las Cruces or Lamesa,” the filing reads. “It does not matter if the travel and hotel are in Albuquerque or Austin—the procurement in Texas of the means of an abortion has intruded upon the State’s interest in the protection of human life.”

So no matter the statements of the lawyers in the courtroom, an attorney for the plaintiffs said their clients wouldn’t feel comfortable resuming services just yet.

“It was not clear to us based on statements made in court whether the behavior [funds would] like to resume would put them at threat from the attorney general,” attorney Elizabeth Myers said after the hearing. “We eagerly await a ruling from the court.”