Fund Tex. Choice v. Deski
| Docket Number | 1:22-CV-859-RP |
| Decision Date | 21 December 2023 |
| Parties | FUND TEXAS CHOICE, et al., Plaintiffs, v. SUSAN R. DESKI, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Before the Court are motions to dismiss filed by Susan R. Deski Jose Garza, Wiley B. McAfee, Julie Renken, Fred H. Weber (Dkt. 137), Gocha Allen Ramirez, (Dkt. 161), Joe Gonzales (Dkt. 162), Bill D. Hicks, (Dkt. 163), Toribio Palacios (Dkt. 164), Jacob Putman, (Dkt. 165), Richard E. Glaser and Ryan Sinclair, (Dkt. 166), and K. Sunshine Stanek, (Dkt. 176), (collectively, the “Prosecutor Defendants”); and Ashley Maxwell, Zach Maxwell, Mistie Sharp, Shannon D. Thomason, and Sadie Weldon, (Dkt. 167), (collectively, the “SB 8 Defendants”). Plaintiffs Fund Texas Choice, et al. (“Plaintiffs”) filed a consolidated response to several of the Prosecutor Defendants' motions to dismiss, (Dkt. 177), a response to Defendant Putman's motion to dismiss, (Dkt. 178), and a response to the SB 8 Defendants' motion to dismiss, (Dkt. 175). Also before the Court is the SB 8 Defendants' motion to defer their response deadline to Plaintiffs' motion for summary judgment, (Dkt. 217). Having considered the record, the parties' briefing, and the relevant law, the Court will deny the motions to dismiss and grant in part the motion to defer.
This case concerns several Texas abortion advocacy groups that seek to fund or support abortion for Texans in states where it remains legal. The Court will first describe the parties, the challenged statutes, and the case's procedural history, before turning to the merits of Defendants' arguments.
Plaintiffs are comprised of several nonprofit Texas abortion funds and one physician. As part of their mission to support reproductive rights, they hope to fund and facilitate travel and lodging for Texans who seek abortions outside the state. (2d Am. Compl., Dkt. 129, at 2). Historically, before the Supreme Court's decision in Dobbs v. Jackson Women's Health Org., 142 S.Ct. 2228 (2022), the funds would provide financial, logistical, emotional, and travel assistance to pregnant Texans. Dr. Ghazaleh Moayedi, an OB-GYN, provided abortions for pregnant Texans and now hopes to directly provide abortion-related healthcare to pregnant Texans in other states. (Id.). They claim that they have been forced to halt many of their historic activities following the passage of SB 8 and the Dobbs decision, and they want to resume their prior activities as permitted by the U.S. Constitution. (Id. at 11).
The Prosecutor Defendants are various district and county attorneys in Texas. They are authorized to pursue criminal charges under the Texas pre-Roe statutes for crimes that occur in their jurisdiction. Tex. Code Crim. Proc. art. 2.01. They have the sole authority to file and pursue criminal cases in their respective districts. (2d Am. Compl., Dkt. 129, at 32).
The SB 8 Defendants are private Texas citizens. (Id. at 32-33). They have threatened to enforce SB 8 against certain Plaintiffs for their assistance with in- and out-of-state abortions. (Id.). This includes, among other things, sending Rule 202 Petitions seeking pre-suit discovery against Plaintiffs and other abortion providers. (Id. at 51-55).
Prior to the Supreme Court's opinion in Roe v. Wade, 410 U.S. 113 (1973), the Texas Penal Code contained Articles 1191, 1192, 1193, 1194, and 119625 (collectively, the “Pre-Roe Statutes”), under which abortion was criminalized.
Article 1191 of the Texas Penal Code stated:
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By ‘abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.
Tex. Pen. Code. Art. 1192 (West 1961).
Article 1192 further states, “Whoever furnished the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.” Id. This accomplice liability is punishable by two to five years in a state penitentiary. Id. Over a century ago, a Texas court interpreted “furnish[ing] the means for procuring an abortion” to apply to providing drugs, medicine, or instruments that could produce an abortion, or committing violence upon the pregnant person to bring about an abortion. See Fondren v. State, 169 S.W. 411, 414-16 (Tex. 1914).
Beyond the pre-Roe laws, Plaintiffs also challenge the constitutionality of SB 8. The law, which went into effect on September 1, 2021, authorizes private citizens to bring a civil action against any person who performs or “aids or abets” certain abortions in Texas. Tex. Health & Safety Code § 171.208. SB 8 provides that a suit may be brought against a person who “performs or induces an abortion in violation of this subchapter” or any person who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion . . . if the abortion is performed or induced in violation of this subchapter...” Id. § 171.208(a)(1), (2).
SB 8 delegates enforcement to private citizens and prohibits governmental officials from enforcing the law. A plaintiff under SB 8 need not have an individualized injury to bring suit. Id. § 171.208(a). It provides a minimum fine of $10,000 for each abortion but provides no maximum penalty. SB8 purports to limit the effect of the judgments of other courts, including federal courts, by denying the defenses of nonmutual preclusion, claim preclusion (also known as res judicata), and limiting recovery of attorney's fees. Id. § 171.208(e). SB 8 permits a private plaintiff to bring the case in his or her own county of domicile (if in Texas), regardless of whether that county has any connection to the events alleged or the relevant witnesses and prohibits any motion to transfer venue. Id. § 171.210. The law was designed to avoid judicial review. (2d Am. Compl., Dkt. 129, at 38); United States v. Texas, 566 F.Supp.3d 605, 628 (W.D. Tex.) (), cert. granted before judgment, 142 S.Ct. 14 (2021). The Supreme Court twice declined to grant emergency applications on the Fifth Circuit's stays of this Court's injunctions that prohibited enforcement of the law. See id.; Whole Woman's Health v. Jackson, 556 F.Supp.3d 595 (W.D. Tex.), aff'd in part, rev'd in part 142 S.Ct. 522 (2021).
Plaintiffs brought suit on August 23, 2022. (Compl., Dkt. 1). Plaintiffs initially sued Ken Paxton, in his official capacity as Attorney General for the State of Texas, and several county and district attorneys around the greater Austin area, including Susan R. Deski, Jose Garza, Wiley B. McAfee, Julie Renken, Fred H. Weber (the “Austin area prosecutors”), seeking a preliminary injunction against all Defendants. (Id.). Paxton moved to dismiss the complaint, (Dkt. 33), while the Austin area prosecutors filed an agreed stipulation stating that they did not intend to enforce abortion laws against interstate travel during the duration of this suit. (Agreed Stip., Dkt. 31).
The Court issued its order on Plaintiffs' motion for a preliminary injunction and Paxton's motion to dismiss on February 24, 2023. (Dkt. 120). In its order, the Court found that Paxton could only enforce Texas's abortion restrictions through H.B. 1280 (). (Id.); 2021 Tex. Sess. Law Serv. ch. 800 (H.B. 1280), Sec. 3 (West); Tex. Health & Safety Code § 170A.001, et seq. However, it found that H.B. 1280 does not regulate out-of-state abortions, and therefore, Paxton would have no authority to prosecute Plaintiffs for funding or assisting out-ofstate abortions. (Dkt. 120). Accordingly, the Court granted Paxton's motion to dismiss. (Id.).
As to the Austin area prosecutors, the Court determined that they did have enforcement power under the pre-Roe laws. (Id. at 30-32). Moreover, the Court ruled that the language of the preRoe laws could be arguably interpreted to cover out-of-state abortions, meaning that Plaintiffs could viably claim a genuine threat of prosecution from the Austin area prosecutors. (Id.). The Court found that it was bound by the Fifth Circuit's holding in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), which held that the pre-Roe laws had been repealed by implication. (Id. at 45-47). Accordingly, it preliminarily enjoined the Austin area prosecutors from enforcing the pre-Roe laws against Plaintiffs. (Id. at 52).
Following the preliminary injunction ruling, Plaintiffs moved to amend their complaint. (Dkt. 125). In their amended complaint, Plaintiffs added their claims against the SB 8 Defendants. Plaintiffs also named several more district and county attorneys as Defendants. (2d Am. Compl., Dkt. 129). They plan to request to certify a class of all district and county attorneys in Texas and to seek permanent injunctions and declaratory judgments holding that the pre-Roe statutes and SB 8 may not be enforced against them for facilitating out-of-state abortions. (Id. at 79-80).
Both the Prosecutor Defendants and the SB 8 Defendants have moved to dismiss the complaint. For the most part, the Prosecutor Defendants' motions raise the same arguments. They argue that Plaintiffs' claim is not ripe because they have not initiated or planned to initiate any enforcement proceedings against Plaintiffs. (Mot. Dismiss, Dkt. 137). Moreover, they argue the injury is not traceable to the...
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