Texas prosecutors can't target groups that fund out-of-state abortions -judge

[February 25, 2023]  By Brendan Pierson

(Reuters) - Local prosecutors in Texas cannot use state laws that are more than 60 years old to prosecute organizations that help fund and arrange travel for Texans to obtain abortions in other states where it is legal, a federal judge ruled Friday.

U.S. District Judge Robert Pitman in Austin said that 1961 state abortion laws, which were rendered unconstitutional by the U.S. Supreme Court's 1973 ruling in Roe v. Wade establishing a nationwide right to abortion, were not revived when the Supreme Court overturned Roe last June.

The pre-Roe laws include criminal penalties for people who help others obtain an abortion.

Pitman's order, which is preliminary, will remain in place while abortion funding groups, including Fund Texas Choice, The North Texas Equal Access Fund and The Lilith Fund for Reproductive Equity, move forward with a lawsuit seeking to block enforcement of the laws.

The order applies only to five individual local prosecutors who are named as defendants in the case, though the groups have said they will seek to expand their case to include a class of all local prosecutors in the state. Pitman said that he could issue an order applying to a broader group of prosecutors in the future, after they have had a chance to appear in court.

Pitman, who was appointed to the bench by Democratic former President Barack Obama, dismissed claims the groups had brought against Texas Attorney General Ken Paxton, saying he did not have the authority to enforce the pre-Roe laws.

Dr. Franz Theard, looks at a patient's sonogram at his abortion clinic, Women's Reproductive Clinic of New Mexico in Santa Teresa, U.S., January 13, 2023. REUTERS/Evelyn Hockstein

Paxton's office and lawyers for the abortion funds and for the local prosecutors did not immediately respond to requests for comment.

The groups filed their lawsuit not long after last June's Supreme Court ruling, saying they risked prosecution for helping Texans obtain legal abortions in other states. They cited statements by Paxton and by some state lawmakers suggesting that the pre-Roe laws criminalized funding or facilitating such abortions.

Pitman wrote that while the pre-Roe laws could be read to criminalize helping with out-of state abortions, they were implicitly repealed when Texas passed new abortion restrictions after Roe.

He said the 5th U.S. Circuit Court of Appeals had found as much in a 2004 decision rejecting a lawsuit seeking to overturn Roe by the original plaintiff in Roe, Norma McCorvey, who later became an anti-abortion activist.

(Reporting By Brendan Pierson in New York; Editing by Alexia Garamfalvi and Aurora Ellis)

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