“The Lilith Fund and the Texas Equal Access Fund have admitted paying for abortions in violation of the Texas Heartbeat Act,” said Tom Brejcha, president and chief attorney of the Thomas More Society, an anti-abortion legal group, referring abortions that the groups have helped. to ease over a two-day period in October when a judge temporarily blocked the ban.
Now, abortion rights groups believe those threats may have opened the door to something they’ve eluded since the law took effect in September: a viable avenue for a legal challenge.
Texas law has has so far withstood multiple legal challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion past the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court hoping to overturn SB 8, including Texas clerks, judges and medical board officials — but, in each case, the courts concluded that they were going after the wrong people.
After a month of threats from these anti-abortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them had identified themselves as those enforcing the law – and, therefore, those for which abortion rights advocates hold 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 anti-abortion legal groups, in federal court, as well as two private citizens in US court. State of Texas. Abortion funds, which raise money to help low-income patients get abortions, have been instrumental in helping patients get to abortion clinics in other states since the law went into effect. of the Texas ban.
“The Thomas More Society’s invocation and intent to enforce SB 8 poses imminent and existential threats to the fundamental and constitutional rights of plaintiffs, their staff, volunteers, and donors,” the authors wrote. abortion fund in their court filing on Wednesday. .
The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves and their staff, volunteers, and donors from the coordinated efforts of individuals and organizations across the country who have made it clear their intention to enforce SB 8 by suing abortion funds,” said Elizabeth Myers, one of the attorneys representing abortion rights groups.
The Thomas More Society and America’s First Legal Foundation did not respond to a request for comment.
Ahead of a separate Mississippi case that could reverse or weaken significantly Roe vs. Wade, the U.S. Supreme Court passed up three opportunities to block the Texas law, which conflicts with historic precedent that has protected the constitutional right to abortion for nearly 50 years. The case filed by the Texas abortion funds will open another potential route to the High Court, lawyers say, giving judges an opportunity to rule on the merits of the law itself, rather than the issues find out who has legal grounds to sue.
While these lawsuits may be the best chance abortion rights advocates currently have to block the Texas ban, abortion funds will still face an uphill battle in court. Eventually, the case will have to go to the Fifth Circuit Court of Appeals, one of the most conservative appeals courts in the nation, which has repeatedly upheld the Texas law.
Texas lawmakers are also trying to thwart the efforts of abortion funds. A Republican Texas lawmaker sent cease and desist letters to all abortion funds in Texas two days after the abortion funds filed their lawsuits, calling the abortion funds ‘criminal organizations’ .
“It is a crime to pay for another person’s abortion in Texas, and anyone who donates money to these abortion funds will be prosecuted,” wrote Rep. Briscoe Cain, who said he planned to introduce legislation in the 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 for decades. )
Some legal scholars believe the new lawsuits by abortion funds could pose a threat to SB 8 now that various individuals and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas, specializing in federal law. courts and closely followed the abortion ban in Texas.
“This case is not hypothetical because these particular defendants are pursuing various types of enforcement actions,” Vladeck said. 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 the Drexel Kline School of Law who specializes in gender and constitutional law, called the latest trial a “brilliant decision”. The abortion funds have built a legal case that “avoids many of the difficult legal issues of previous trials”, he added.
Even if a Federal Court judge blocks the law, Vladeck said, the injunction will likely only apply to the particular defendants listed in the case. While these specific people and organizations can no longer sue under SB 8, any other private citizen could still sue.
At this point, Vladeck said, Texas abortion providers will have to decide if they’re comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face more lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident of victory.
With these cases, Vladeck added, abortion rights groups are “building up the defensive posture.”
“They are going to court to obtain a judgment which will not be completely effective, but which will facilitate the defense of the lawsuits which they will still face.”
Ann Marimow contributed to this report.