The notorious far-right attorney who helped craft Texas’s bounty-hunter abortion ban, Senate Bill 8, is now attempting to force abortion funds to hand over scores of information on every abortion the organizations have supported since 2021. This includes the city and state where each patient lived, the names of the abortion providers, and the identities of nearly every person who helped the patients access abortion care.
Earlier this month, Jonathan Mitchell — himself not a Texan but based in Washington state — served requests to nine Texas abortion funds and one Texas doctor. The brazen attempt to acquire sensitive information about abortion patients and the funds that assist them is a disturbing turn in the ongoing legal battle over Texas’s six-week abortion ban.
In August of last year, a coalition of abortion funds and doctors filed a class action lawsuit against Texas Attorney General Ken Paxton and other state officials. The suit, Fund Texas Choice v. Paxton, aims to challenge Senate Bill 8, or S.B. 8, and its devious method of civil enforcement to evade federal court scrutiny. In response, Mitchell, on behalf of the Texas government, is using the legal discovery process to harass those defending reproductive freedoms.
“This is a stunning escalation attacking the free speech and privacy rights of so many people,” Neesha Davé, executive director of Lilith Fund, one of the abortion funds in the case, said in a statement. “We are talking about thousands of people among Lilith Fund’s supporters, followers, donors, clients, and volunteers. It is objectively terrifying to think about what anti-abortion extremists want to do with this personal information and how low they are willing to go to get it. But let’s be clear: under no circumstances will we ever willingly hand over this personal information.”
The abortion funds’ case asks a question of law: whether S.B. 8 is constitutional. Details about abortion fund patrons and their medical procedures have no bearing on this specific legal question. Mitchell and his clients in the Texas government are no doubt aware of this; the discovery requests are an intimidation tactic, in the spirit of the bounty-hunter law itself.
S.B. 8 introduced a novel approach for banning abortion through civil litigation while Roe v. Wade was still on the books. The law permits any private individual, even from outside the state, to file suits against anyone they speculate has “abetted” an abortion. This could include an Uber driver who takes a patient to an appointment or a pastor who has counseled a person on ending a pregnancy. The plaintiff need not even prove that they have been harmed in any way. Those who bring successful suits are promised $10,000, hence the “bounty hunter” moniker.
While Mitchell has not yet been forced by the court to give reasons for his discovery requests, The Guardian reported, “In past litigation, Mitchell has argued that, in order to sue over the six-week ban, someone must show they have either violated it already or plan to do so in the future.” Discovery could thus be used to undermine the plaintiffs’ standing in the case or to place targets on the backs of abortion “abettors” who seek to file S.B. 8 civil suits.
In response, the abortion funds filed a motion this week for a protective order to keep the names and information of clients and workers private.
“We will never willingly hand over personal information, and we will fiercely protect our staff, donors, volunteers, and supporters,” Maleeha Aziz, acting executive director of Texas Equal Access Fund, said in a statement shared with The Intercept.
Given the discovery requests’ total irrelevance to the questions of the case, it’s unlikely that the presiding U.S. District Judge Robert Pitman will force the funds to comply — not to mention that handing over such information could constitute a violation of First Amendment protections. “The First Amendment guarantees the right to associate, speak, and petition the government — it protects the very information Mitchell and his clients wish to obtain,” Lilith Fund noted in a press release.
As the very existence of vigilante laws like S.B. 8 makes clear, threats and intimidation are favored techniques of Texas Republican rule, regardless of whether the right thinks its tactics will hold up in the court of law. And as proven by the Dobbs decision overturning Roe v. Wade, among other troubling rulings from our activist Supreme Court, Republicans have every reason to believe the law can be bent to their agenda.
“Whether or not the anti-abortion lawyers here are successful or not, the very presence of the inquiry will likely cause chilling effects: Patients, funds, and providers will be continuing to operate in states of uncertainty, unsure if the law will protect them,” Greer Donley, an associate professor at the University of Pittsburgh School of Law who focuses on abortion and the law, told me. “Patients are leaving their homes in the dark of night to get abortions out of state, telling no one what they are doing, thinking they are committing a crime. They are not, but creating a culture of fear is the point. And it’s horrible.”
The Fund Texas Choice case, even if successful, can’t return robust reproductive care to the vast abortion desert that is Texas. The fall of Roe has ensured that Texas will be a state where abortion is banned, with or without S.B. 8 on the books. According to the Guttmacher Institute, a reproductive rights and health research organization, the average Texan has to travel more than 500 miles to the nearest out-of-state clinic for care.
Assisting with this travel and access to reproductive care is the core work of Texas abortion funds — and the very activities Paxton seeks to criminalize. In February, Pitman temporarily blocked prosecutors in eight counties from pursuing charges against anyone who helps abortion seekers obtain care out of state. This ruling should be made permanent and expanded.
A successful challenge to S.B. 8’s vigilante enforcement mechanism would also be crucial amid the rising tide of similar astroturfed laws. Bounty-hunter bills, including ones that would de facto ban gender-affirming care and drag shows, have been proposed or passed in several Republican-led states. Mitchell’s discovery requests deliver the same message: Those fighting for bodily autonomy will be personally targeted.
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This post was originally published on The Intercept.
