For nearly six months, as Texas’ new abortion law made its way through the courts, abortion providers and opponents were locked in a stalemate.
The law, known as Senate Bill 8, allows private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy. With an exception as soon as the law went into effect, abortion providers in Texas stopped performing these prohibited procedures — so opponents did not try to file any of these lawsuits.
But that could change. A group of anti-abortion lawyers has moved to potentially sue under SB 8, claiming in state court petitions that executives of two abortion funds have information about illegal abortions that ‘they helped get patients.
This is a significant escalation from abortion opponents, who have so far seemed content with the chilling effect that even the mere threat of lawsuits has had on abortion providers and their affiliates. .
The petitions were filed by two women, Ashley Maxwell of Hood County and Sadie Weldon of Jack County. They are represented by Jonathan Mitchell, the architect of SB 8 and former Solicitor General of Texas; state senator Bryan Hughes (R-Mineola), the law’s lead legislative advocate; and attorneys from the Thomas More Society and the America First Legal Foundation.
Maxwell and Weldon are asking a judge to allow them to depose the executive director of the Texas Equal Access Fund and the deputy director of the Lilith Fund before any lawsuits are filed.
If granted, the depositions will allow the petitioners to discover “the extent of each individual’s involvement in aiding or abetting post-pulse abortions in violation of SB 8” so that they can “better assess the prospects of legal success”.
While abortion providers have reported a significant drop in patient numbers since the law took effect, abortion funds have seen strong demand of clients trying to access abortions before the deadline or leaving the state to request the procedure.
“What [these petitions] The goal is to prevent pregnant women from seeking help from abortion funds,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. “If anyone thinks their identity and whereabouts are going to be exposed to the world in a lawsuit… they’re going to hesitate before they pick up the phone and call for help.”
“helped and encouraged”
The petitions seek to remove Kamyon Conner, executive director of the Texas Equal Access Fund, and Neesha Davé, deputy director of the Lilith Fund for Reproductive Equity, two nonprofit abortion funds that provide financial assistance to patients seeking abortions.
Both Conner and Davé admitted, in sworn affidavits in state court, that their organizations helped fund abortions “after the period in which heart activity is usually detectable.” This would put them in violation of SB 8, also known as the Texas Heartbeat Act, and expose them to potential lawsuits.
The organizations helped fund these abortions during a brief period last fall when a federal district judge had prohibit law enforcement. A higher court quickly overturned this decision; SB 8 specifically notes that an injunction that is subsequently rescinded is no protection against future lawsuits.
This aspect of the law has not been tested in court, and experts say it is unclear whether it would hold up.
“In part, this attempt to obtain a deposition is also an attempt to determine whether claims can be filed based on abortions performed during those few days that SB 8 was not in effect,” Sepper said. .
The depositions also seek to identify who, in the language of the law, “aid and abetted” in these abortions – and the petitions indicate that they take a very broad view of the term. According to the filing, they are seeking information about the funds’ role in facilitating abortions, the identities of the people they have worked with, and access to documents on the funds’ sources of financial support.
In a statement, Thomas More Society President Tom Brejcha said the two named abortion funds had “exposed their employees, volunteers and donors to civil suits and possible criminal prosecution.”
“Those who fund or help bring about these abortions will be revealed in the discovery,” Brejcha said. “Anyone who has aided or abetted an illegal abortion in Texas is subject to the full force of the law and the imposition of these civil and criminal penalties.”
In response to a call for funds launched by the Lilith Fund, the Thomas More company tweeted a warning, “@lilithfund donors could be prosecuted under SB 8”, and linked to the petitions press release.
Is this a standalone case?
Attorneys for the abortion funds and attorneys for the petitioners disagree on how and where these deposition requests should be made. The dispute centers on the ongoing “multidistrict litigation,” where 14 challenges to the law in state court have been combined in a single courtroom in Austin.
Those cases specifically targeted the anti-abortion group Texas Right to Life and its legislative director, John Seago, and were heard by retired state judge David Peeples. It was in the context of this multidistrict litigation that Conner and Davé filed these affidavits under oath, admitting potential violations of SB8.
In December, Peeples ruled SB8 unconstitutional, although it did not prohibit its application. Texas Right to Life has appealed this decision and all other actions in the case are stayed pending appeal.
The central question is whether these petitions to depose Conner and Davé are related to this case and should be added to the multidistrict litigation. If they are, they too would be prevented from moving forward by the pending appeal, and depositions would not take place anytime soon.
Jennifer Ecklund and Elizabeth Myers, who represent the Abortion Funds, consider these new petitions “accompanied” cases – the actual legal term – and have moved them into multidistrict litigation.
Mitchell, representing both Texas Right to Life and the women who filed the motions, filed a motion arguing that the motions are unrelated to ongoing litigation and should be referred to Jack and Denton counties, where the cases are deposited.
Seago, with Texas Right to Life, said he was not consulted by Mitchell or anyone else before these petitions were filed and had no part in the effort. Mitchell declined to comment; Hughes did not respond to requests for comment.
The next step would be for Peeples to hold a hearing and decide whether the cases are related or not. Attorneys for the Abortion Funds argue that the stay in the multidistrict case prevents Peeples from even taking that step, a position that will likely be challenged by attorneys for the plaintiffs.