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Texas-based abortion funds — nonprofits that offer financial support for people seeking to end a pregnancy — are weighing whether to resume helping people leave the state for care, a decision that could expand Texans’ ability to access abortion.
An Austin-based federal judge last Friday temporarily blocked Texas prosecutors from pursuing legal action against organizations that help people secure abortions in states where it is legal. The ruling offers a rare spot of relief for abortion rights proponents in Texas and comes as state lawmakers are increasingly targeting organizations that help people leave the state for an abortion.
The temporary injunction, issued by U.S. District Judge Robert Pitman, applies to a law that was blocked when the U.S. Supreme Court issued its landmark decision in Roe v. Wade in 1973 but was never formally repealed. Texas Attorney General Ken Paxton, a Republican, has sought to resume enforcing that law since this past summer, when the court overturned Roe and allowed states to ban abortion. A lawsuit challenging the state’s pre-Roe ban is currently being argued in federal court.
Still, even with the ruling, abortion funds aren’t sure about whether to resume work.
“We might have the ability to support Texans in accessing abortion care outside the state,” said Kamyon Connor, executive director of abortion fund Texas Equal Access. “What are the concerns? The nature of our work as Texas’ abortions funds is risky. Anything we’re doing is watched and becomes targeted.”
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In interviews with The 19th, staff from the Lilith Fund and Texas Equal Access would not specify if they may soon start supporting people who want to leave Texas for an abortion. Neither fund could provide a timeline for when they might reach a decision.
Texas is the biggest state in the country to have banned abortion, and providers in states where the practice remains legal say they have seen an increase in Texas-based patients traveling to them for care. With Texas’ abortion funds mostly unable to support people for travel since Roe was overturned last summer, funds in neighboring states have said they’ve taken on an increased financial burden.
The Texas statute is vague but prohibits residents from “aiding and abetting” anyone in getting an abortion — which has been interpreted to include any activity that helps people leave the state to access the procedure. As a result, Texas’ abortion funds stopped funding abortions or travel costs associated with them.
But while the case is being argued, a handful of Texas’ district attorneys, who are named in the case, cannot prosecute abortion funds or other people in the state for helping people get an abortion out of state, Pitman said.
That injunction could be expanded more broadly, to prevent any district attorney in Texas from prosecuting Texas’ abortion funds. That would expand protections for abortion funds in the state, said Elizabeth Myers and Jennifer Ecklund, two attorneys representing the state’s abortion funds.
But that could take up to six weeks: Both sides of the lawsuit will have to submit motions arguing who they believe should be blocked from prosecuting abortion funds. After receiving those arguments, the judge can determine who is affected by the injunction and whether Texas’ abortion funds are fully protected from prosecution.
In his ruling, Pitman argued that Texas’ pre-Roe ban had been repealed “by implication,” since the state had passed other abortion laws since 1973 that took Roe’s protections into account. Because the law was not in effect, he wrote, it probably cannot be used to prosecute Texans who helped people leave the state for abortions. Texas’ abortion trigger ban, a separate law that banned the procedure contingent upon Roe’s overturn, also cannot be applied in these cases. Neither, Pitman wrote, can Senate Bill 8, a law passed in 2021 that instituted civil penalties for anyone who aided or abetted the provision of abortion for people pregnant past six weeks.
Pre-Roe bans are being litigated across the country. In Wisconsin, the state’s ongoing Supreme Court election has drawn national attention, in large part because the winner will probably be part of a panel to rule on whether that state’s abortion ban — passed in 1849 — should remain in effect. Arizona’s ban, passed in 1864, was blocked this past December; its legal impact may ultimately be decided by the state Supreme Court.
But state laws are ultimately the domain of state courts, and any decision in Texas will have limited impact beyond the state’s borders, said David Cohen, a professor at Drexel University’s Kline School of Law.
“This decision is entirely based on Texas statutory law,” he said. “I don’t think it helps beyond the question of Texas because every state’s law is going to have a different history, different background, different principles.”
The case’s impact could also be short-lived in the state. Legislation introduced February 23 would make it a crime to donate to or work at a fund that helps people leave the state for abortions. (The bill has no co-sponsors and has not been assigned to a legislative committee, a crucial step to be considered for passage.) Connor, of Texas Equal Access, said her organization is “deeply concerned” about the implications of that bill.
“Anti-abortion extremists have worked so diligently to shut down our abortion providers in our state, and they are frustrated that abortion funds still exist in our state, and are trying to decimate Texans’ access to abortion,” said Neesha Davé, the interim executive director for the Lilith Fund, the state’s oldest abortion fund. “They are coming after abortion funds because they know we are here.”
Funds are not the only organizations being targeted. Another bill currently being considered by the Senate’s state affairs committee would block state tax incentives for any business that helps people — including employees – seek abortions. And a bill in the House’s analogous committee would punish any government entities that help people get abortions – including discussing abortion as an option, or helping people with transportation, lodging, child care or food while traveling for care.