Texas abortion funds ask federal panel to prevent prosecutions

After Dobbs, abortion funds sued local prosecutors over a pre-Roe statute, but the state says no one has been or will be criminally charged for enabling abortion-related travel.(CN) — Texas nonprofit groups that assist women in traveling for abortions in states where the procedure remains legal asked the Fifth Circuit Monday to preemptively shield them from prosecution under a 150-year-old state law. The case, Fund Texas Choice v. Deski, grew out of the legal fog after the Supreme Court overturned Roe v. Wade in 2022.Dr. Ghazaleh Moayedi, a physician who sits on one of the groups’ boards, fears the old statute makes it a felony to “furnish the means for procuring an abortion.” Texas officials have said since 2022 that the pre-Roe laws are back in force while the Legislature, in Senate Bill 8, declared those old statutes were never repealed. But the Fifth Circuit itself once held the opposite: that the old laws had been repealed by implication.The groups sued local district attorneys, arguing they should not have to guess whether helping someone travel is a crime. They asked the court to find their work is protected or that the old law is inapplicable.In oral arguments, attorney John P. Atkins stressed the lower court’s dismissal of the case was erroneous due to the limitations imposed by the Fifth Circuit’s decision in Mi Familia Vota v. Ogg, which severely restricts the plaintiffs’ ability to seek preenforcement review of constitutional violations. He also contended Texas district attorneys are not state officials and thus not subject to sovereign immunity.“If that were the finding of this court, that could indeed relieve significant fear,” Atkins told the panel. “In that case, my clients have achieved what they wanted, which is that they’re no longer afraid that the statute will be enforced against them.”The judges interrupted quickly, pressing Atkins to identify the lower court’s error or to explain how his clients had been injured. According to district attorneys who filed affidavits in the case, no investigations or prosecutions have been pursued under the law, but most remained quiet about future prosecutions. Travis County District Attorney José Garza, facing a removal petition, said his office would take any case with probable cause. That, Atkins argued, is “an affirmative statement of a willingness to enforce.”“Not all silences are the same,” Atkins said. “Answering that we will decide whether to apply this law at our discretion or not is an acknowledgment that you are willing to enforce the law. It’s just not an acknowledgment that you’re willing to enforce the law against [these specific clients].”Attorney Heather Hacker, representing several district attorneys, asked a different question: Why is this lawsuit here at all?“Plaintiffs acknowledge in their own complaint that the Texas Court of Criminal Appeals has held for over 100 years that … the laws that they challenge do not apply to their conduct,” she said. That conduct, she said, is helping with abortions outside Texas. “So why are we here?”She emphasized no Texas prosecutor has used the old law against these groups and none of the state’s hundreds of elected district attorneys has threatened to.U.S. Circuit Judge Stephen A. Higginson, a Barack Obama appointee, asked a practical follow-up: If these prosecutors cannot be sued, who in Texas would bring such a charge?“The DAs,” Hacker said, adding that they are the right officials in theory, but they have not yet done anything that would let a federal court step in.She offered the judges a simpler way out. Do not get lost in immunity rules, she said. Decide that the groups lack standing because the old law does not cover paying for travel or lodging for an out-of-state abortion.Higginson asked for clarification that the statute does not apply to the plaintiffs.“Yes, Your Honor,” she admitted, suggesting fear came from politicians who cannot prosecute.Under century-old Texas criminal cases, she said, “furnishing the means” covers drugs and instruments, not out-of-state care, funding and transportation. Plus, the crime occurs where the abortion is performed, Hacker said.In a short rebuttal, Atkins said a lawyer’s argument is not the same as a prosecutor’s promise. “If we are now receiving an assurance that this is what the district attorneys believe, that the law is not enforceable against my clients, that is a fine representation that would be sufficient to end this case,” he said.The nonprofits were suing, he added, because they never got that assurance on the record.The panel also included U.S. Circuit Judges James C. Ho and Carl E. Stewart, appointees of Donald Trump and Bill Clinton, respectively. They did not indicate when they would rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads