The Texas Tribune
BY ELEANOR KLIBANOFF / THE TEXAS TRIBUNE
A federal judge issued a favorable ruling for Texas abortion funds, indicating they likely cannot be criminally charged for helping people travel out of state to terminate their pregnancies.
U.S. District Judge Robert Pitman temporarily blocked prosecutors in eight counties from pursuing charges against anyone who helps someone get an abortion outside of Texas. But his ruling indicated he believes the laws he has enjoined them from enforcing may not actually be in effect at all.
This lawsuit, filed two months after the overturn of Roe v. Wade, was brought by abortion funds, nonprofit groups that help pay for abortions and related expenses, including out-of-state travel, hotels and child care.
After the overturn of Roe v. Wade, the funds stopped paying for Texans to leave the state, citing their fear of being prosecuted under the state’s intersecting abortion bans. In the lawsuit, they cited examples of Attorney General Ken Paxton and state lawmakers expressing an intent to bring charges against abortion funds.
But Pitman ruled Friday that Paxton could not enforce Texas’ abortion bans against anyone who helped pay for an abortion out of state and dismissed him from the suit.
Pitman analyzed Texas’ three abortions laws: the ban on abortions after about six weeks of pregnancy, commonly known as Senate Bill 8; the so-called trigger law, which went into effect in July; and the pre-Roe statutes, which were in effect before the U.S. Supreme Court deemed them unconstitutional in 1973.
Since SB 8 is enforced through private civil lawsuits, neither Paxton nor local prosecutors play any role in enforcing that statute, Pitman noted.
Paxton and the district attorneys do have the power to enforce the trigger law, which comes with a sentence of up to life in prison and a minimum $100,000 penalty. The law criminalizes anyone who performs an abortion, except to save the life of the pregnant person.
But it cannot be enforced beyond state lines, Pitman found.
The law “does not express any intent, much less a clear one, to apply extraterritorially,” he wrote. “Accordingly, there is no plausible construction of the statute that allows the Attorney General or local prosecutor to penalize out-of-state abortions.”
That leaves only the pre-Roe statutes, which come with sentences of two to 10 years in prison for anyone who performs or “furnishes the means for” an abortion. Pitman found that the laws could potentially be interpreted to criminalize someone in Texas who helped someone pay for an abortion out of state.
“In other words, if an abortion takes place outside of Texas, a plausible (albeit unlikely) construction of the statute authorizes prosecution for ‘furnishing the means’ of that abortion if that ‘furnishing’ takes place in Texas,” Pitman wrote. “The pre-Roe laws prohibit ‘furnishing the means’ within the state, and do not necessarily limit that prohibition to abortions which occur in Texas.”
Pitman enjoined the named district attorneys — who represent Travis, Washington, Blanco, Burnell, Llano, San Saba and Caldwell counties — and a county attorney, representing Burleson County, from enforcing the pre-Roe statutes against the abortion funds while the case proceeds.
There is no civil penalty associated with the pre-Roe statutes, so Pitman dismissed Paxton from this line of inquiry — and thus the entire suit.
But in the ruling, Pitman also argued that the pre-Roe statutes have been repealed and therefore cannot be used to prosecute anyone.
In 1973, when the U.S. Supreme Court ruled that Texas’ abortion laws were unconstitutional, it said that “the Texas abortion statutes, as a unit, must fall.” The state removed the statutes from the penal code, and in 2004, the U.S. Court of Appeals for the 5th Circuit found that they had been “repealed by implication.”
The state went on to pass myriad other abortion laws that would have been at odds with the pre-Roe bans, were they still in effect.
But in 2021, in the text of both SB 8 and the trigger law, the Legislature affirmed that Texas “never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade.”
When Roe was overturned last June, Paxton issued guidance indicating the pre-Roe statutes were immediately in effect. He tweeted, “Texas’s pre-Roe statutes criminalizing abortion is 100% good law, and I’ll ensure they’re enforceable.”
The question went to the Texas Supreme Court, which temporarily allowed the pre-Roe statutes to go into effect, but the case was dismissed before a final ruling.
In Friday’s ruling, Pitman rejected the idea that the pre-Roe statutes are still in effect.
“Legislative findings are insufficient to revive a law that has been repealed,” he wrote. “The mere finding that its pre-Roe laws were not repealed is not a ‘statutory amendment’ and does not render the decision [by the 5th Circuit] clearly wrong.”
The temporary injunction indicates that Pitman believes the abortion funds will likely prevail in arguing that they should not be prosecuted under the pre-Roe statutes.
“Our clients are very pleased with this order,” said Elizabeth Myers, a Dallas attorney representing the abortion funds. “Judge Pitman confirmed there can be no liability for funding or supporting abortions outside of Texas under the trigger ban or SB 8 … and it makes it clear he thinks pursuing criminal charges by any district attorney or county attorney against this type of behavior is improper.”
Paxton’s office did not immediately respond to a request for comment.