As we previously reported, in August of this year the Texas SB 8 Litigation MDL Plaintiffs filed a class action in the U.S. District Court for the Western District of Texas, Austin Division, against the Attorney General and county and district attorneys. The action seeks injunctive and declaratory relief from criminal prosecution of Plaintiffs under various Texas anti-abortion statutes (i.e., the Trigger Ban, SB 8, and pre-Roe Penal Code provisions). The suit asserts even though Plaintiffs have ceased direct abortion services Texas, state actors, including the Attorney General and local prosecutors, are threatening them and their staffs, volunteers, and donors with prosecution for unlawfully aiding and abetting abortions.

Specifically, the complaint states that “Plaintiffs wish to resume the following activities: (a) funding legal, out-of-state abortions for pregnant Texans (i.e. including directly paying and/or reimbursing out-of-state licensed providers of abortion services and providing financial aid to pregnant Texans for that purpose); (b) providing informational material and planning assistance (such as organizing and funding transportation and lodging) to pregnant Texans for obtaining legal, out-of-state abortions; and (c) transporting pregnant Texans to out-of-state licensed providers of safe, legal abortion.” Additionally, Dr. Moayedi “wishes to resume her travel to other states to provide care to patients” and “to provide care to patients in other states via telehealth practices from her location in Texas.”

Plaintiff 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 Dro. Ghazaleh Moayedi, DO, MPH, FACOG v. Ken Paxton, et al. (Civil Cause No. 1:22-cv-859) has been brought pursuant to the federal class action rule, FRCP 23, the federal Constitution and statutes, including 42 U.S.C. § 1983 (action for a violation of civil rights), and the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202. Plaintiffs seek relief on ten counts, as follows:

  1. The Trigger Ban and pre-Roe statutes violate the named party physician’s and Clinic Access Support Network volunteers’ rights to travel.
  2. Criminalization of Financial Assistance for Pregnant Texans’ travel out of state violates Plaintiffs’ First Amendment rights.
  3. Texas’ threatened enforcement of the pre-Roe furnishing statute (i.e., the offense for “furnishing the means” for procuring and abortion) violates Plaintiffs’ First Amendment free speech rights.
  4. Texas’ threatened enforcement of the Trigger Ban violates Plaintiffs’ First Amendment free speech rights.
  5. Retroactive application of the pre-Roe statutes is unconstitutional under the ex post facto and due process clauses.
  6. The Texas pre-Roe furnishing statute and Trigger Ban are void for vagueness.
  7. The Texas pre-Roe statutes, SB 8, and the Trigger Ban cannot and do not apply to abortion care obtained outside of Texas.
  8. Texas’ abortion statutes cannot reach medical care provided to patients outside of the state.
  9. SB 8’s fee-shifting mandate is pre-empted by federal law (civil rights claims brought under 42 U.S.C. § 1983).
  10. SB 8’s fee-shifting provision is unconstitutional under the First Amendment right to petition.

The state will likely ask the court to dismiss the action because none of the plaintiffs have actually been sued or prosecuted by any of the named defendants as of yet (some have been targeted, however, by Rule 202 petitions filed by individuals in anticipation of litigation under SB 8). How far threats of civil litigation or criminal prosecution can go before a person’s constitutional rights are materially infringed will certainly be tested by this case. One way or another, filing the action is merely the first step in a process that will stretch out for years to come before a resolution of the federal constitutional challenges, either by judicial decision or legislative intervention (or both), is reached. It also remains to be seen in what context similar challenges under the Bill of Rights in Article 1 of the Texas Constitution. A parallel state court class action asserting, for example, violations of § 8 (freedom of speech and press), § 16 (prohibition of ex post facto or retroactive laws), § 19 (due process of law), and § 27 (rights of assembly and petition) certainly seems conceivable at this point but may be unnecessary if the federal courts act.

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