Texas Lawmakers Test How Far Threats Against Abortion Can Go | Texas

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RState lawmakers have sent legal threats to Texas organizations that offer to fund out-of-state trips for abortions, potentially setting up a confrontation between abortion law and long-standing constitutional rights such as freedom. of association and the freedom to travel.

The Texas Freedom Caucus, a conservative faction of Republicans in the state legislature, sent a July 7 letter to a law firm offering to cover employees’ expenses if they traveled for abortions. He threatened Sidley LLP with felony charges, saying Texas could criminalize anyone who “provides the means” for an abortion, regardless of where the abortion took place. The letter cites a 1925 law that was not officially repealed after the Supreme Court codified abortion rights in Roe v Wade in 1973; last week, the Texas Supreme Court upheld that the 1925 law could be enforced.

Lawmakers also introduced a bill that would allow individuals to sue anyone who financially assists in the abortion of a Texan, regardless of the location of the abortion. The law proposes that such assistance be considered criminal even if a Texan has traveled out of state for a medical abortion and participated in drugs in Texas.

Texas already allows individuals to sue civil abortion lawsuits, which can cost defendants tens of thousands of dollars; proposed new legislation would build on it, making defendants liable for actions that occur out of state, even where abortion is still legal.

The letter is just the latest move by right-wing lawmakers, lawyers and activists to crack down on abortion in Texas. Last week, State Attorney General Ken Paxton sued the Biden administration for requiring states to provide abortions in medical emergencies. In March, a state legislator, Briscoe Cain, sent a cease and desist letter to Citibank, which had announced a policy to pay abortion costs for out-of-state employees.

The Texas Freedom Caucus did not respond to requests for comment, and Sidley LLP did not comment on how it would respond to the letter. Other companies have rebuffed similar requests. In September of last year, Uber and Lyft responded to a Texas bill that provided legal repercussions for taxi drivers who (knowingly or unknowingly) transported a pregnant woman for an abortion after six weeks by stating that they would cover all legal costs for the charges brought against their employees.

Either way, the threats could have a chilling effect on employers in a state where abortion funds have temporarily shut down in response to the changing legal landscape. Local lawyers said they believed such threats would not hold up in court, but abortion funds could be withheld pending their day in court.

“Right-wing activists, lawyers, and lawmakers have undertaken a coordinated effort to intimidate and threaten anyone who advocates to help people get reproductive care, regardless of whether their actions are legal or constitutional,” he said. said Jennifer Ecklund, attorney for Thompson Coburn, who currently works for most abortion funds in Texas.

“If they can dissuade everyone from supporting pregnant women in need of care, then they’ve achieved their goal, no matter what a court says two years from now,” she added.

Texas could be a litmus test for other states hoping to enforce state bans across borders, at a time when much of the population is forced to travel out of state for medical care. A Guttmacher Institute report this week showed nearly one in ten people traveled out of state to get an abortion in 2020 — and that was before Roe’s reversal.

“What they’re really doing is a spaghetti test, where they’re just going to throw everything against the wall and see what the courts are willing to swallow,” said ACLU attorney Brian Hauss. In cases like these, where anti-abortion laws potentially violate the First Amendment, which protects freedom of speech and association, and the Fourteenth Amendment, which protects the right to travel within the country — Hauss says the constitutional protections are generally strong, but the issue over the next few months will be whether the courts will continue to uphold these protections.

There is a precedent that would seem to reject the proposed new law. In Bigelow v Virginia, the Supreme Court ruled that Virginia could not prevent its residents from traveling to New York for abortions. As long as that remains, states will struggle to criminalize people who travel out of state, Hauss says.

But because the 1925 law applies to organizations assisting individuals financially or materially — a condition closer to complicity — the thorny question is whether Texas can legally consider something that is legal in another state, such as abortion, an “unlawful conduct”.

“Courts are going to spend a lot of time resolving the extraterritorial applications of these laws,” Hauss said.

On whether Texas can apply its laws across state lines, Michael S Green, a constitutional expert and professor at William & Mary Law School in Virginia, says the Supreme Court will largely respect state sovereignty, treating them almost as if they were separate countries.

He cites a 1941 case in which a Florida person was criminally prosecuted for violating a state law prohibiting collecting ocean sponges using scuba gear, even though that person did. in international waters.

“The Supreme Court said it was OK – just being a Floridian is enough for Florida criminal law to apply to you for things you do outside of Florida,” he said. -he declares.

Ecklund called this precedent dangerous. “If Texas lawmakers think they can police people’s conduct in Vermont and Idaho, that’s a very scary thing for our system.”

She also said that in attacking constitutional rights, anti-abortion activists and lawmakers made a mistake.

“They come after your ability to travel; your ability to spend your own money for political purposes. They come after the most intimate family relationships. They literally created a structure where if a mother gives advice to her child, it is considered to facilitate the abortion, and they can sue her,” Ecklund said.

“These are very closely held rights that have been repeatedly reaffirmed by the constitution. Unless the other side now considers precedent irrelevant, period…these will ultimately be upheld by the courts as unconstitutional.

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