A Texas lawyer is trying to get the names of donors to nine abortion funds in the state, as well as information on every abortion the funds may have assisted with since September 2021, when the state’s bounty-hunter law took effect. He’s seeking the identities of thousands of people in Texas and across the country in a move that advocates say could threaten the operations of the non-profit groups, which are already struggling to raise enough money.
The effort isn’t likely to be successful because the First Amendment protects people’s right to associate, but the lawyer doesn’t need a judge to agree with him in order to cause harm for abortion seekers. Just the act of requesting the information could be enough to scare people out of donating to abortion funds, said Farah Diaz-Tello, senior counsel and legal director for If/When/How, an advocacy organization that helps abortion seekers with legal questions and runs a defense fund for criminal abortion cases.
Jezebel contacted Mitchell for comment about the requests to abortion funds, and he declined to speak on the record. The plaintiff abortion funds said in a press release that “Mitchell and his clients are abusing the discovery process…to subject thousands of people to mass surveillance and harassment.”
Diaz-Tello said that, overall, conservatives like Mitchell are engaging in a “campaign of terror” to manipulate laws against abortion seekers and their loved ones. Of the Mitchell-backed lawsuit where a man is suing his ex’s friends, she said that “it’s essentially abusing the legal system” to scare people out of helping each other: “This is sort of saying that if you do that, if you privately support your friend in a way that is so natural to any of us, that we’re going to expose you, your name is going to be out there, we’re going to come to your place of work and serve you with papers.” It’s threatening to put people through the “humiliating hallmarks of being dragged into the legal system,” to say nothing of the time, stress, and cost of being involved in a court case.
The efforts to ban driving someone seeking an abortion to a clinic out of state reflect the movement’s long-term goal to ban abortion nationwide. “It is people’s fundamental right to be able to travel between states” that, for now, have different abortion laws, Diaz-Tello said. But if activists can’t ban pregnant Texans from traveling, they can subject people who help them to civil lawsuits. Similarly, it is people’s fundamental right to donate to causes they support, so Mitchell’s quest seems destined to fail. But it can still have the effect of people thinking such donations aren’t legal.
Diaz-Tello noted that attacks on abortion funds and practical support networks are “explicitly attacks on marginalized folks,” including people of color and people living on low incomes. Rep. Henry Hyde (R-Ill.) made this crystal clear during debate over his 1976 proposal for the Hyde Amendment, which bans Medicaid funding for abortion. “I would certainly like to prevent, if I could legally, anybody having an abortion,” he said. “Unfortunately, the only vehicle available is the…Medicaid bill.” What we’re seeing now is a continuation of that strategy, Diaz-Tello said. “It’s: ‘Well, we can’t get to a federal ban yet, but we can make it as hard as possible for folks who are living in Texas.’”
Mitchell’s request to one of the abortion funds, reviewed by Jezebel, is exemplary of the asks to all nine: He seeks to learn the identity of every person associated with the fund, “including its employees, officers, board members, volunteers, donors, and financial supporters”; as well as that of every person at the fund who helped someone get an abortion since September 1, 2021, regardless of where the abortion took place. The plaintiffs in Fund Texas Choice v. Paxton are the abortion funds Fund Texas Choice, The Afiya Center, Buckle Bunnies, Clinic Access Support Network (CASN), Frontera Fund, Jane’s Due Process, Lilith Fund, TEA Fund, and West Fund.
“If they can just sow a seed of doubt, then they can effectively cut people off from support.”
Texas physician Ghazaleh Moayedi, who travels out of state to perform abortions, also received a discovery request. (The requests note that the funds and the physician don’t need to provide the names of abortion seekers or any member of their families.)
The discovery request is part of an ongoing lawsuit. A group of Texas abortion funds stopped assisting clients seeking care out of state after the fall of Roe v. Wade for fear that the state would prosecute them. Then, in August 2022, the funds filed a federal lawsuit to protect them from prosecution from the state’s abortion trigger ban, and from civil suits under S.B. 8. A judge issued a temporary injunction in February saying that Texas Attorney General Ken Paxton and eight county prosecutors have no authority to seek charges against those who help people get abortions out of state. The lawsuit is still pending, but after that ruling, the funds resumed services. On Tuesday, lawyers for the funds filed for a protective order, arguing that Mitchell’s discovery requests are an attempt to get a “hit list” of names that could be used to pursue further civil litigation, specifically via the bounty-hunter law.
Mitchell’s requests suggest he believes the funds don’t have legal standing to sue over S.B. 8—which is rich, because Mitchell’s brainchild law itself blew up the very concept of legal standing by allowing anyone to sue over an alleged abortion. While on paper, the requests may be about whether the funds have the legal authority to sue Texas officials, the impact is quite different. “It’s: ‘You are not safe, your information is not safe, your loved ones who support you are not safe, so you may as well just give up because there’s nowhere for you to turn,’” Diaz-Tello said. “That’s the message that they’re sending.” And that message could scare away both the donors to and clients of abortion funds that are resolved to keep helping people get the care they need in states where it’s legal.
As Anna Rupani, executive director of Fund Texas Choice, said in a statement, “This desire to obtain private, confidential information is meant to harass and intimidate, but rest assured, we will not stand for it.”
Anyone with legal questions about abortion of miscarriage can contact the Repro Legal Helpline at (844) 868-2812 for confidential legal information and advice.
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