AUSTIN, Texas (Legal Newsline) - Texas' top lawyer says he hasn't prosecuted anyone for facilitating out-of-state abortions, in the wake of the U.S. Supreme Court ruling that struck down Roe v. Wade, so groups challenging his authority to do so have prematurely filed a lawsuit against him.
State Attorney General Ken Paxton on Dec. 9 filed his motion to dismiss the case, filed earlier this year in Austin federal court by groups like Fund Texas Choice. Those plaintiffs sued Paxton and district attorneys across the state, claiming they have been threatened with criminal prosecution for helping women obtain abortions in other states.
But Paxton, who earlier in the case successfully avoided a deposition, says the plaintiffs lack standing to sue.
"Plaintiffs' contention that they face an imminent threat of enforcement for helping women procure out-of-state abortions is not based on any statement or action taken by the Attorney General, and their manufactured threats of injury are insufficient to confer them with Article III standing," Paxton wrote.
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.
"Their standing is based instead on a motley assortment of generalities that refer neither to Plaintiffs nor to persons like them," Paxton's motion says.
"They cite Twitter posts, advisory documents, an interview in which the Attorney General said he would 'look[] at' whether companies may be civilly liable for paying for employees’ out-of-state abortions and would follow his statutory duty to enforce the HLPA’s civil penalties; a letter sent by State legislators on which he was cc’ed; and the brief explaining why Plaintiffs are not entitled to a preliminary injunction."
Paxton also says he is protected from suit by sovereign immunity.
Two law professors, experts in reproductive rights law, recently submitted their thoughts to the court, saying the pre-Roe laws outlawing abortion were effectively repealed almost 50 years ago and new Texas legislation does not apply to out-of-state procedures.
Texas at Austin School of Law professor Elizabeth Sepper and SMU Dedman School of Law professor Seema Mohapatra say an agreement can be reached between the two sides without a determination on the constitutionality of the new Texas law.
"(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."