AUSTIN, Texas – A Texas man is petitioning a court to authorize an obscure legal action to find out who allegedly helped his former partner obtain an out-of-state abortion, setting up the latest test of the reach of statewide abortion bans.
As some states work to expand abortion access and others impose more limits following the U.S. Supreme Court’s overturning of Roe V. Wade, antiabortion activists have begun testing the boundaries of statewide bans in court. Abortion advocates call these legal actions a scare tactic, and stress that crossing state lines to obtain an abortion remains legal.
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Both sides agree the Texas case could test the meaning of “leave it to the states,” a phrase echoed by former President Donald Trump on the campaign trail.
WHAT IS HAPPENING IN TEXAS?
Documents pertaining to this Texas petition have been sealed by the court for the woman's safety, but according to The Washington Post, which first reported the legal action, the man’s attorney is Jonathan Mitchell, a former Texas solicitor general and architect of Texas’ strict abortion ban. Representing the woman is the Center for Reproductive Rights and attorneys at Arnold & Porter.
Her attorneys say the man has made a “Rule 202” request — a filing that usually precedes a lawsuit when illegal activity is suspected. If approved, the court could allow the man to seek documents related to the alleged procedure and order the woman and others accused of helping her to sit for depositions.
The Texas abortion ban provides for enforcement either through a private civil action or under the state's criminal statutes, which were updated to prohibit nearly all abortions, punishable by up to life in prison for anyone held responsible for helping a woman obtain one.
This is the first legal action they've seen to assert that women can't leave Texas to get an abortion somewhere else, said Marc Hearron, a senior counsel at the center.
“Being involved in or helping someone get a legal abortion outside of Texas is legal,” said Hearron. “There is nothing wrong with it.”
Mitchell did not immediately respond to multiple calls from The Associated Press seeking comment.
“The limit on the ability to travel is a step beyond what I think we have seen anywhere,” said Michelle Simpson Tuegel, an attorney who specializes in women’s rights cases. “I pray we are not living in times where our high courts are going to say that our home states can trap us when we are pregnant.”
THE STATE OF INTERSTATE ABORTION ACCESS
Since the U.S. Supreme Court ended the nationwide right to abortion two years ago, a looming question has been how states with bans might try to stop their residents from obtaining abortions in states where they’re legal.
At least 14 states controlled by Democrats have passed laws seeking to protect providers and others who help people obtain abortions in their states. Some also protect people who prescribe abortion pills via telemedicine to people in states with bans.
Idaho adopted a ban on what it calls “abortion trafficking,” aimed at preventing transporting minors out of state for an abortion without parental permission, but enforcement has been paused by a federal judge. Tennessee lawmakers passed a similar measure last month, but Republican Gov. Bill Lee has not yet signed it.
After Alabama's attorney general said his office would “look at” groups that help women get abortions, the U.S. Department of Justice, an abortion fund and former providers asked a court to block such investigations. On Monday, a federal judge said most of their lawsuit can move ahead.
And four counties in Texas have adopted local measures, enforceable through lawsuits by private citizens, against using specific roads to help people obtain an abortion.
TESTING THE LIMITS OF THE STATES
Anti-abortion forces have begun turning to the courts to test how vastly these restrictions can be enforced and who can be held accountable.
In a separate case in Galveston, Mitchell is also representing a Texas man who is suing three of his ex-wife’s friends, accusing them of wrongful death and seeking $1 million in damages for helping her get the pills she needed to self-induce an abortion.
Abortion advocates say Mitchell's lawsuits are meant as scare tactics, and stress that crossing states lines for abortions remains legal.
John Seago, president of antiabortion group Texas Right to Life, said these lawsuits will help clarify how the laws will be enforced and who can be held accountable as states are left to resolve questions about abortion.
“At the very least we have to support each state to fully enforce their laws,” Seago said, arguing that other states can’t have the power to “sabotage” Texas’ laws.
____ This story has been updated to correct the style of the law firm Arnold & Porter.
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Associated Press writer Geoff Mulvihill contributed to this report.