AUSTIN, Texas (Legal Newsline) - Leading authorities on reproductive rights in Texas have weighed in on a lawsuit that challenges the authority of state officials to prevent out-of-state abortions.
Professors from the University of Texas and Southern Methodist University say pro-life groups should not have to fear criminal prosecution, as state officials have no legal basis to threaten them for wanting to help Texas women set up abortion procedures in other states.
Texas at Austin School of Law professor Elizabeth Sepper and SMU Dedman School of Law professor Seema Mohapatra say the court need not address constitutional issues with pre-Roe v. Wade abortion laws or the Texas law that went into effect after Roe was overturned by the U.S. Supreme Court this year.
"(O)nce this court adopts the proper limiting construction of the Texas statutes directly at issue in this litigation, there is no need to reach the constitutional issues raised by the parties as related to the conduct involved," says their amicus brief, filed Nov. 28 in Austin federal court.
"Rather, this Court should instead enter a declaratory judgment that the Texas statutes do not apply to the conduct Plaintiffs want to engage in and an injunction prohibiting the Defendants from attempting to apply those statutes to that conduct."
Plaintiffs like Fund Texas Choice and The Lilith Fund for Reproductive Equity filed suit earlier this year against county district attorneys and state Attorney General Ken Paxton. The lawsuit says the defendants are attempting to destroy a "pregnant person's right to self-determination and reproductive healthcare."
Tweets, cease-and-desist letters and other forms of communication have threatened corporations around the state who promise to help their staff find abortion-related health care outside of Texas.
The suit cites a letter to the Sidley Austin law firm that said its decision to reimburse travel costs "of employees who leave Texas to murder their unborn children" appears to make the firm "complicit in illegal abortions."
Abortion is a felony in Texas unless the mother's life is in danger, the letter read, threatening that the firm is exposing itself to prosecution and disbarment.
The pre-Roe laws that outlawed abortion except in cases of life endangerment were repealed in 1973, the professors note, and the newer version (HB 1280) only applies to in-state abortions.
"(I)t is apparent that those statutes, by their plain terms, do not apply to the conduct Plaintiffs want to engage in," the brief says.
"They cannot be read to have extraterritorial reach or to prohibit financial or logistical support or medical care related to lawful abortions outside of Texas. A contrary construction would impermissibly expand the statutes' scope and conflict with settled Texas law."
Sepper and Mohapatra have written extensively on abortion law. Their credentials are attached to the bottom of their brief, which can be viewed here.
On Nov. 14, the U.S. Court of Appeals for the Fifth Circuit ruled Paxton couldn't be compelled to testify, even though the plaintiffs are arguing his public statements are contradicting what he says in court.