Texas abortion funds freeze indefinitely as Supreme Court shakes landscape

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Texas Abortion Funds have played a vital role over the past 10 months for women trying to evade the state’s new six-week abortion ban, helping them pay and get to providers in states where the procedure is still legal.

But when the U.S. Supreme Court on Friday overturned Roe v. Wade, upending nearly 50 years of federal abortion protections, those same groups weren’t offering help. Many have instead announced that they are “pausing” operations while they review current and existing state laws.

“We want to protect the staff and volunteers of our abortion fund as much as possible from the risk of arrest and involvement in the racist criminal justice system,” said the Lilith Fund, the oldest abortion fund in the state. statement.

Abortion funds are among those facing tough legal questions about what they are allowed to do under state law. The answers will have implications for everyday Texans, whether Texas residents can donate to abortion funds, whether they can drive someone across state lines for an abortion, or even if they simply post information online about how to circumvent state abortion laws.

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Texas has a trigger ban that criminalizes nearly all abortions and takes effect within a month of the court’s final judgment. He is subject to penalties for first or second degree felonies and civil penalties of at least $100,000.

But the state also has abortion bans that predate the 1973 Roe decision, and its six-week abortion ban known as SB 8 is still in effect, enforced exclusively through civil suits. These laws not only target abortions themselves, but all support services that help people access them.

“SB 8’s purpose was to shut down the clinics, and it was actually successful,” said Josh Blackman, professor of constitutional law at South Texas College of Law in Houston. “But now that women have to go to other states now that Roe’s been canceled, we’ll see a lot more litigation.”

On Monday, more than half a dozen abortion providers in Texas filed a lawsuit to stop authorities from enforcing the 1920s-era abortion ban, arguing that care should remain legal until the trigger law comes into effect this summer. But even if they succeed, SB 8 remains in place, and later this summer so will the trigger law.

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Elizabeth Sepper, a law professor at the University of Texas at Austin, said she doubts the state can bring charges in many cases without passing a new law trying to criminalize acts like driving someone on a date. you abortion out of state or donate to an abortion fund.

“It’s the kind of activity that’s usually not a crime,” Sepper said. “What they will facilitate is not a crime where it will happen… It would require a new legal structure and would infringe on other freedoms we have that are protected or under the Constitution of the state, the U.S. Constitution, or both.”

On the issue of donations in particular, she added that the Supreme Court has already set the precedent that money is protected speech under the First Amendment. Restricting donations in favor of abortion rights, but not anti-abortion donations, could constitute discrimination based on a point of view that would violate the First Amendment.

But Blackman said someone could still try to pursue a donation under SB 8’s aid and encouragement clause.

“The usual rule is that you have free speech to promote your opinions, but under current state law those opinions are themselves illegal,” he said. “So this could be a prescient argument about whether you’re facilitating the commission of a crime, which is an exception to the First Amendment. I don’t think that argument is very good, but I want to point it out.

The more important point, Blackman said, is that the mere threat of a lawsuit can cause more people to refrain from donating or posting information online about how to access abortions.

If state lawmakers try to pass such laws or if a prosecutor tries to use an existing law to seek criminal penalties for such actions, Sepper anticipates “lots of prosecution, as there have been before.”

ACLU of Texas staff attorney David Donatti said it would be “amazing” if the state tried to pass laws with “extraterritorial reach.”

“There would be serious concerns about whether they would be able to do that,” Donatti said.

Justice Brett Kavanaugh wrote in his concurring opinion that he did not believe these types of laws would pass the constitutional test.

“In my view, some of the other abortion-related legal issues raised by today’s decision are not particularly difficult constitutionally,” he wrote. “For example, can a state prohibit a resident of that state from traveling to another state to have an abortion? In my opinion, the answer is no based on the constitutional right to travel between states.

Sepper said abortion funds probably stopped working because they want reassurance that they won’t face criminal charges, and that the only way they’ll get that will be through litigation.

“Abortion funds have learned with SB 8 (the six-week abortion ban) that they have a target on their backs,” she said. “The ‘aiding and abetting’ language in SB 8 was an example of the legislature aiming anti-abortion laws not only at providers but also at funding institutions and structures.”

In March, two abortion advocacy groups in Texas filed four lawsuits, two in state court and two in district court, challenging the private enforcement mechanism of the six-week abortion ban. state, saying it is denying Texans the right to due process, free speech and equal protection. under the law. The cases are still pending.

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