IssuesJudicialStatewide NewsU.S. District Judge Rules Attorney General Paxton Cannot Prosecute Out-Of-State Abortions

Pre-Roe laws, the Heartbeat Act, and “the trigger ban” are all in question after a judge's ruling on the attorney general's power to prosecute abortions.
February 27, 2023
A United States district judge has ruled that Texas’s pre-Roe v. Wade abortion bans are barred from enforcement and the state can no longer prosecute organizations that facilitate out-of-state abortions.

U.S. District Judge Robert Pitman, appointed by President Obama for the Western District of Texas Austin Division, issued his ruling on February 24.

The case concerns a physician and several non-profit Texas abortion funds who have filed suit against Attorney General Ken Paxton, alleging he violated their First Amendment rights by trying to “restrict their ability to facilitate out-of-state abortions, which is protected by the right to interstate travel.”

The ruling further alleges that “Paxton’s actions and the threats of prosecution have restricted [one of the defendants’] ability to travel across state lines and provide abortion services where they remain legal.”

Pitman dismissed Paxton from the lawsuit, stating that the attorney general “has no authority to enforce the state’s pre-Roe laws” because the plaintiffs” “do not allege that Paxton may enforce any of Texas’s three abortion statutes against them.”

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Texas’ pre-Roe abortion laws, the Texas Heartbeat Act and House Bill (HB) 1280, are each detailed in an analysis in the dismissal ruling.

“The Court finds that Paxton lacks enforcement authority with respect to [the Heartbeat Act] and the pre-Roe laws” the ruling reads.

The Heartbeat Act and pre-Roe laws were declared outside of Paxton’s enforcement authority under constitutional interest that the plaintiffs would be “suffering a substantial and ongoing injury” of their First Amendment rights and would “face a substantial risk of prosecution.”

HB 1280, commonly known as the “trigger ban,” which took effect 30 days after the U.S. Supreme Court’s judgment in Dobbs v. Jackson, has been ruled on by Pitman to  “not regulate abortions that take place out of the State of Texas and cannot even be arguably read to do so.”

The decision states that “there is no plausible construction of the statute that allows the Attorney General or local prosecutor to penalize out-of-state abortions.”

“In other words, if an abortion takes place outside of Texas, a plausible (albeit unlikely) construction of the statute authorizes prosecution for “furnishing the means” of that abortion if that “furnishing” takes place in Texas.”

Paxton previously stated on social media after the overturning of Roe v. Wade that Texas’ pre-Roe statutes are “100% good law” and enforceable.

Pitman’s ruling says otherwise.

The ruling now will give backing to those who help Texans seek out-of-state abortions by providing an injunction against prosecutors using pre-Roe bans and setting a limit on HB 1280.

Rep. Tony Tinderholt (R-Arlington) recently filed HB 2813 which would place restrictions on a company’s ability to facilitate an out-of-state abortion.

Any governing person of a company that does business in the State of Texas who facilitates an employee receiving an abortion out-of-state would be considered “in breach of the person’s fiduciary duty to the company,” and the company or shareholders would have the right to sue the individual.

A copy of Pitman’s ruling can be found below.


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Cameron Abrams

Cameron Abrams is a reporter for The Texan. After graduating with a Bachelor’s Degree in Psychology from Tabor College and a Master’s Degree from University of the Pacific, Cameron is finishing his doctoral studies where his research focuses on the postmodern philosophical influences in education. In his free time, you will find him listening to a podcast while training for an endurance running event.