A coalition of Texas abortion rights groups sued state Attorney General Ken Paxton Tuesday to protect their right to help Texans obtain abortions in states where the procedure is still legal.
The federal class-action lawsuit, filed in Austin, lists in addition to Paxton a number of county and district attorneys from across Texas who are now empowered to prosecute abortion providers under the state’s “trigger law,” which has been in effect since Thursday and is a near-total ban on the procedure.
The lawsuit argues that the groups’ right to spend money to pay for Texans to travel out of state for abortions is a form of constitutionally protected free speech under the First Amendment. Though none of these groups have yet been prosecuted under the ban, according to the lawsuit they have been legally threatened with prosecution by Texas legislators.
Demand for services from funds that will help pay for out-of-state abortions was already way up, the Texas Tribune reports, after the six-week ban initially went into effect last year, and the trigger law may likely have a similar effect.
Advocate groups including Fund Texas Choice, the North Texas Equal Access Fund, the Lilith Fund for Reproductive Equity, Frontera Fund, The Afiya Center, West Fund, Jane’s Due Process, Clinic Access Support Network and Dr. Ghazaleh Moayedi are the named plaintiffs in the suit.
The coalition wants to ensure that prosecutors cannot enforce the trigger law, which is formally called House Bill 1280, “…in a manner that violates Plaintiffs’ rights to freely travel, freely associate, freely speak, and freely support members of their communities through financial assistance, as guaranteed by the United States Constitution and federal law,” according to court documents.
The argument presents a potential dilemma for conservative judges, said David Levine, a professor at the University of California-Hastings School of Law, who have fought to enshrine spending money as a form of free speech protected by the U.S. Constitution’s first amendment.
“It’s a very strong argument to say that money is speech,” Levine said of the abortion rights groups’ legal strategy. “This puts the court in a very interesting position to decide which principle is more important to them—banning abortions, or money as speech.”
Conservatives’ view that spending money is a protected form of free speech dates back to Supreme Court decisions made in the 1970s during the Nixon administration. A slew of cases brought by conservatives starting during that era focused on lifting restrictions on financial contributions to political campaigns by arguing that spending money on political candidates constitutes a form of free speech. “From there… it’s just been knocking down regulation after regulation on campaign finance,” Levine said.
Statements from some conservative lawmakers in Texas appear to contradict the generally held conservative dictum that spending money constitutes free speech, at least in the context of abortion, the lawsuit says.
In the example cited in the suit, Houston-area state Rep. Briscoe Cain has suggested that the constitutionally protected right to travel from state to state doesn’t extend to protecting abortion groups’ right to pay for others’ interstate travel.
Statements like Cain’s are only interpretations of the language in the trigger ban and the Constitution, however. The Constitution does not contain any explicit language protecting Americans’ ability to travel between states; that right became law as a result of Supreme Court decisions, Levine explained. In the same way, Texas’ trigger ban does not explicitly bar residents from traveling out of state for an abortion.
“If I give you money, knowing that you are going to use it for an abortion in Texas… knowing that you’re going to use it for an illegal abortion in Texas, then I have aided and abetted,” University of Houston law professor Seth Chandler explained to KHOU. He clarified, however, that “we’re not talking about abortion travel outside of Texas.”
Levine said the coalition’s counter-argument to conservatives who say they can’t pay for Texans to get abortions in other states is relatively straightforward. “The counter is: ‘I’ve got a constitutional right to travel, and the third party groups have a constitutional right to pay for it.'”
Paxton’s office did not immediately return a call for comment Friday.
