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Two Texas abortion advocacy groups are trying a new legal strategy to strike down the state’s restrictive abortion law, which has proven very difficult so far to challenge in court.
They’ve filed four lawsuits, including two in federal court, challenging the law’s constitutionality. But rather than focusing on abortion itself, the suits argue that the law is unconstitutional in other ways — violating the right to due process, free speech and equal protection under the law.
Texas’ abortion law, passed last year as Senate Bill 8, empowers private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy.
The law is extremely broad — anyone, regardless of where they live or whether they have a connection to the person obtaining an abortion, can bring a lawsuit against anyone who helps someone obtain an abortion in virtually any way.
It’s specifically written to evade judicial review, which has allowed it to remain in effect for more than six months. But the Texas Equal Access Fund and the Lilith Fund, which help patients pay for abortions and related expenses, believe this new angle may be the key to undoing the law.
“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.
Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.
Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.
But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.
The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.
South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.
“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”
This case will be watched closely, not just in Texas, but across the country. Other states, including Idaho and Oklahoma, have taken steps to pass similar laws creating private enforcement abortion bans.
Abortion funds in the crosshairs
When Texas’ law went into effect in September, clinics stopped performing abortions after about six weeks of pregnancy, fearing lawsuits.
While the clinics have necessarily scaled back services, abortion funds have stepped forward to fill in the gaps — providing funds, material support and guidance to help women travel out of state to obtain abortions.
This has put them in the crosshairs of anti-abortion groups, including the Thomas More Society and the America First Legal Foundation.
Last month, these anti-abortion groups asked a judge to allow them to depose the leaders of two abortion funds, the Texas Equal Access Fund and the Lilith Fund, to discover the “extent of involvement of each individual that aided or abetted post-heartbeat abortions in violation of SB 8.”
A judge has not yet ruled on that petition. But it created an opportunity that the abortion funds have been waiting for — an opening to challenge the law by suing someone who intends to enforce it.
This was the hurdle in the previous federal legal challenge: While lawyers representing the abortion providers identified a slew of state actors they believed were responsible for enforcing the law, the U.S. Supreme Court disagreed with most of them. Recently, the Texas Supreme Court threw out the last remaining argument in that case, leaving them no one to bring a legal challenge against.
But in addition to seeking to depose the leaders of two abortion funds, the Thomas More Society and the America First Legal Foundation have been actively threatening the abortion funds with lawsuits on social media.
When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.
This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.
Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.
Rhodes has argued in several papers that this is a strong angle to challenge the law.
“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.
The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.
If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.
That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.
The case would undoubtedly be appealed, which is part of the strategy. The suits are filed in Chicago, where the Thomas More Society is based, and Washington, where America First Legal Foundation is based, meaning they would go to the 7th U.S. Circuit Court of Appeals and the District of Columbia Court of Appeals.
Cases filed in Texas go to the extremely conservative 5th U.S. Circuit Court of Appeals, which has ruled against the abortion providers at several turns already.
Rhodes said evading the 5th Circuit has the potential to create future complications — unless the case ends in a victory for the abortion funds at the U.S. Supreme Court, which would create a binding ruling that would stop lawsuits from being successfully brought under the law.
Avoiding the abortion argument
Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.
“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”
Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.
Since the U.S. Supreme Court decided Roe v. Wade in 1973, states have been consistently blocked from passing abortion bans before viability, usually around 24 weeks of pregnancy. Those challenges have been brought by abortion providers and patients, citing their constitutional protections under Roe v. Wade.
Abortion funds are not protected by Roe v. Wade, which makes them more vulnerable to lawsuits under Texas’ abortion law. But as the U.S. Supreme Court considers a Mississippi abortion case that could overturn Roe, it may be advantageous to bring a legal challenge on other grounds.
The abortion funds’ legal challenge is predicated on other constitutional rights — due process, standing and free speech, among other arguments — that remain in effect even if Roe is overturned.
Amanda Beatriz Williams, the executive director of the Lilith Fund, said in a statement that group is being “forced to protect the work” it does.
“We won’t be harassed or intimidated out of serving our community, in the courts or anywhere else,” she said. “We are proud to fight back, even when we have no choice.”
