Republican lawmakers have sent legal threats to Texas organizations that offer to fund out-of-state travel for abortions, potentially setting up a showdown between abortion law and long-held constitutional rights such as freedom of association and freedom of travel.
The Texas Freedom Caucus, a conservative faction of Republicans in the state legislature, sent a letter on 7 July to a law firm that offered to cover employees’ expenses if they travelled for abortion. It threatened Sidley LLP with felony charges, claiming Texas can criminalize anyone who “furnishes the means” for an abortion, regardless of where the abortion occurs. The letter cites a 1925 law which was not formally repealed after the supreme court codified the right to abortion in Roe v Wade in 1973; last week, the Texas supreme court confirmed the 1925 law can be applied.
The lawmakers also outlined proposed legislation that would allow individuals to sue anyone who financially assists with a Texan’s abortion, regardless of where the abortion occurs. The law proposes that such assistance be considered criminal even if a Texan travelled out of state for a medication abortion and took part of the drug in Texas.
Texas already allows individuals to bring civil cases on abortion, potentially costing defendants tens of thousands of dollars; the proposed new legislation would build on it, making defendants liable for actions that happen out-of-state, even where abortion is still legal.
The letter is just the latest move by rightwing lawmakers, lawyers and activists to crack down on abortion provision in Texas. Last week, the state’s attorney general, Ken Paxton, sued the Biden administration for mandating that states provide abortions in medical emergencies. In March, a state legislator, Briscoe Cain, sent a cease and desist letter to Citibank, who had announced a policy to pay for employees’ out of state abortion expenses.
The Texas Freedom Caucus did not respond to requests for comment, and Sidley LLP did not comment on how it would respond to the letter. Other firms have pushed back against similar requests. In September of last year, Uber and Lyft responded to the Texas bill that laid out legal repercussions for taxi drivers who (knowingly or unknowingly) transport a pregnant individual for an abortion after six weeks by declaring they would cover all legal fees for charges brought against their employees.
Regardless, the threats could have a chilling effect on employers in a state where abortion funds have temporarily shuttered in response to the shifting legal landscape. Local lawyers said they believe such threats won’t hold up in court, but that abortion funds could be stuck awaiting their day in court.
“Rightwing activists, lawyers and legislators have taken on a coordinated effort to intimidate and threaten anyone who advocates for helping people obtain reproductive care, without any concern for whether their actions are legal or constitutional,” said Jennifer Ecklund, a lawyer for Thompson Coburn, which is currently working on behalf of most abortion funds in Texas.
“If they can scare everybody out of supporting pregnant people who need care, then they’ve achieved their end, no matter what a court says two years from now,” she added.
Texas could be a litmus test for other states hoping to enforce state bans across borders, at a time when a large swath of the population is forced to travel out of state for medical care. A Guttmacher Institute report this week showed that nearly one in ten people travelled out of state to get an abortion in 2020 – and that was before the reversal of Roe.
“What they’re really doing is a spaghetti test, where they’re just gonna throw everything at the wall and see what the courts are willing to stomach,” said Brian Hauss, a staff attorney for the ACLU. In cases such as these, where anti-abortion statutes potentially infringe the first amendment, which protects freedom of speech and association, and the fourteenth amendment, which protects the right to travel domestically – Hauss says constitutional protections are usually robust, but the question over the coming months will be whether the courts continue to uphold those protections.
There is precedent that would appear to shoot down the proposed new law. In Bigelow v Virginia, the supreme court ruled Virginia could not prevent its residents from going to New York to obtain an abortion. As long as that stands, states will have a hard time criminalizing people for out-of-state travel, says Hauss.
But because the 1925 law applies to organizations helping individuals financially or materially – a condition closer to aiding and abetting – the thorny question is whether Texas can legally consider something that is legal in another state, such as abortion, “unlawful conduct”.
“The courts are going to spend a lot of time resolving the extraterritorial applications of these laws,” said Hauss.
As to whether Texas can apply its laws across state lines, Michael S Green, a constitutional expert and professor at the William & Mary law school in Virginia, says the supreme court will largely respect the sovereignty of states, treating them almost as if they were separate countries.
He points to a 1941 case where a person from Florida was criminally prosecuted for violating a state law making it illegal to collect ocean sponges using scuba equipment, even though the person did so in international waters.
“The supreme court said that was OK – just being a Floridian is enough for Florida criminal law to apply to you for things that you do outside of Florida,” he said.
Ecklund called that precedent dangerous. “If Texas legislators think that they get to control the conduct of people in Vermont and Idaho, that’s a very scary thing for our system.”
She also said that, in going after constitutional rights, anti-abortion campaigners and lawmakers have made a mistake.
“They’re coming after your ability to travel; your ability to spend your own money for political purposes. They’re coming after the most intimate familial relationships. They literally have created a structure where if a mother provides advice to their child, it is viewed as facilitating abortion, and they can sue her,” Ecklund said.
“These are very closely held rights that have been reaffirmed over and over again by the constitution. Unless the other side has a view now that precedent doesn’t matter, period … those will ultimately be borne out in the courts to be unconstitutional.”
