The Washington PostDemocracy Dies in Darkness

Texas’s strict new abortion law has eluded multiple court challenges. Abortion rights advocates think they have a new path to get it blocked.

The new strategy is a response to attacks by antiabortion groups on organizations raising money to help low-income patients get access to abortions

People protest the Texas abortion ban at the Texas Capitol in Austin on Oct. 2, 2021. (Stephen Spillman/AP)
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correction

A previous version of this article misstated the appeals court the abortion funds’ lawsuits would be heard by. They would go before the U.S. Court of Appeals for the 7th Circuit Court and the D.C. Circuit, not the 5th Circuit. The article has been corrected.

The initial attacks came in court and on social media, when a group of antiabortion lawyers accused two Texas abortion rights groups of funding abortions after six weeks of pregnancy, the legal limit under Texas’s restrictive abortion ban. They filed official requests in court for more information on the abortions, then took to Twitter, warning that anyone who helped fund abortions through these two groups “could get sued.”

“The Lilith Fund and the Texas Equal Access Fund have admitted to paying for abortions in violation of the Texas Heartbeat Act,” said Tom Brejcha, president and chief counsel of the Thomas More Society, an antiabortion legal group, referring to abortions the groups helped to facilitate over a two-day period in October when a judge temporarily blocked the ban.

Now, abortion rights groups think those threats may have opened the door to something that has eluded them ever since the law took effect in September: a viable path for a legal challenge.

The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.

After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.

In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.

The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.

The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.

The Thomas More Society and the America First Legal Foundation did not respond to a request for comment.

Ahead of a separate Mississippi case that could overturn or significantly weaken Roe v. Wade, the U.S. Supreme Court has passed up three opportunities block the Texas law, which is at odds with the landmark precedent that has protected the constitutional right to abortion for nearly 50 years. The case filed by Texas abortion funds will open another potential pathway to the high court, lawyers say, presenting an opportunity for the justices to rule on the merits of the law itself, rather than issues about who has legal grounds to sue.

While previous federal lawsuits were filed in Texas, these were filed in Chicago and Washington, D.C., allowing them to avoid the U.S. Court of Appeals for the 5th Circuit , the appeals court that handles Texas cases. The 5th Circuit is one of the most conservative appeals courts in the country and has upheld the Texas law multiple times. If the lawsuits are appealed, they would instead be heard by the U.S. Court of Appeals for the 7th Circuit Court and U.S. Court of Appeals for the District of Columbia Circuit.

Texas Supreme Court rules against abortion providers in federal challenge to restrictive state law

Texas lawmakers are also trying to thwart the abortion funds’ efforts. A Republican lawmaker in Texas issued cease and desist letters to every Texas abortion fund two days after the abortion funds filed their lawsuits, calling abortion funds “criminal organizations.”

“It is a crime to pay for another person’s abortion in Texas, and anyone who gives money to these abortion funds will be prosecuted,” wrote Rep. Briscoe Cain, who said he planned to introduce legislation next session that would “ensure that abortion providers and funds are prosecuted for their crimes.” (Abortion funds can legally operate under existing Texas law, and have been doing so for decades.)

Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.

“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.

David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.

Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.

Texas patients are rushing to get abortions before the state’s six-week limit. Clinics are struggling to keep up.

At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.

With these cases, Vladeck added, abortion rights groups are “building the defensive position.”

“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

Ann Marimow contributed to this report.

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