Texas Abortion Funds File New Challenges to Abortion Ban: ‘We Will Not Be Intimidated’

While at least 10 states consider bills copying Texas S.B. 8., lawsuits filed last week by two Texas abortion funds provide new hope for restoring abortion access in the state.

A woman carries a sign declaring abortion a part of healthcare at a rally at the Texas State Capitol on Sept. 11, 2021, in Austin. (Jordan Vonderhaar / Getty Images)

On March 16, the Texas Equal Access (TEA) Fund and the Lilith Fund for Reproductive Equity filed complaints against two right-wing anti-abortion organizations: the America First Legal Foundation in a Washington D.C. federal court and the Thomas More Society in an Illinois federal court. They also filed complaints against two individuals, Sadie Weldon and Ashley Maxwell, in two different Texas district courts. The lawsuits ask the courts to declare S.B. 8, the Texas six-week abortion ban, unconstitutional and to block the defendants from enforcing the law.

The U.S. Supreme Court and the Texas Supreme Court have previously dismissed abortion providers’ lawsuits challenging the constitutionality of S.B. 8, but these four lawsuits filed last week provide new hope for restoring abortion access in the state.

TEA Fund and Lilith Fund raise money and help low-income patients seeking abortion care in Texas and other states. The lawsuits came after Weldon and Maxwell filed court petitions against the two funds in February seeking to question their leaders about how they have helped people obtain abortions since S.B. 8 went into effect. Weldon and Maxwell are represented by Jonathan Mitchell, the architect of S.B. 8 and a former solicitor general for Texas; state Sen. Bryan Hughes (R), the law’s chief legislative advocate; and lawyers from the Thomas More Society and America First Legal Foundation.

These attacks against our fund are meant to stigmatize funding abortion and prevent us from supporting Texans seeking care.

Kamyon Conner, executive director of TEA Fund

On Twitter, Tom Brejcha, president and chief counsel of the Thomas More Society, accused Texas abortion funds of violating S.B. 8 during a two-day period in October when a judge temporarily blocked the ban. Another tweet claimed that people donating to the funds are subject to civil and criminal lawsuits.

In their complaint, the funds argue that the effort to enforce S.B. 8 “poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors.”

“These attacks against our fund are meant to stigmatize funding abortion and prevent us from supporting Texans seeking care,” said Kamyon Conner, executive director of TEA Fund. “The work we do to help people access abortion helps communities thrive. We will not be intimidated. We’ll continue to stand up to the bullies who have launched this attack on our work, our rights and our communities.”

Since the ban first took effect on September 1, nearly 1,400 Texans have left the state each month and traveled to bordering states such as Oklahoma and New Mexico, but also as far away as Illinois, Washington, Ohio and Maryland. 

S.B. 8 bans abortion at roughly six weeks with no exceptions for rape or incest. The law authorizes private parties to sue healthcare providers who perform prohibited abortions or anyone who “aids and abets” another person to obtain one. The law rewards successful plaintiffs “at least $10,000” plus attorney fees and blocks defendants who prevail from getting their legal fees reimbursed. By barring state officials from enforcing the law, Texas lawmakers sought to bypass constitutional abortion rights guaranteed by the 14th Amendment, which only applies to state action not private action.

On March 3, the all-Republican Texas Supreme Court ruled that abortion providers can’t sue state officials to block S.B. 8. The unanimous decision closed the narrow pathway to challenge the law left open by the U.S. Supreme Court last December after the Court dismissed most of the providers’ lawsuit against Texas. At least 10 states are now considering bills copying Texas S.B. 8.

Advocates hope for a better result in the new lawsuits. Whereas previous lawsuits challenging S.B. 8 were filed in Texas, which falls within the notoriously anti-abortion 5th Circuit Court of Appeals, these news lawsuits are filed in Chicago and Washington, D.C., which fall within the U.S. Courts of Appeals for the 7th Circuit and the District of Columbia, which are seen as likely to be more favorable to their arguments.

“We are yet again being forced to protect the work we do and show up for Texans who need abortions and the people who love them,” said Amanda Beatriz Williams, executive director of Lilith Fund. “We won’t be harassed or intimidated out of serving our community, in the courts or anywhere else. We are proud to fight back, even when we have no choice.”

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.