Travel Assistance for Out-of-State Abortions Shielded by District Court Ruling
Author: Emily Scace, XpertHR Legal Editor
March 10, 2023
A federal district court has ruled that a Texas law criminalizing abortion does not prohibit organizations from helping people seeking abortions to travel out of state to access the procedure.
The case, Fund Texas Choice v. Paxton, has potentially significant implications for employers. In the wake of the Supreme Court's Dobbs v. Jackson Women's Health Organization decision, a number of prominent corporations announced they would cover travel expenses for employees who needed access to out-of-state abortion care. The interaction between such policies and laws prohibiting a person from "aiding and abetting" an abortion - like the Texas statutes at issue in the case - has been a subject of uncertainty.
A number of abortion rights groups and nonprofit organizations brought the Fund Texas case, claiming fear of prosecution stopped them from providing travel assistance to Texans seeking out-of-state abortions after Dobbs Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade's central holding that abortion is a constitutional right.
Alleging infringement on their First, Fifth and Fourteenth Amendment rights, the plaintiffs testified that prior to the Dobbs decision, they "were providing travel support and logistics to get pregnant Texans to their abortion care appointment." However, after the Supreme Court released its decision in Dobbs, they entirely stopped funding abortion access because they were concerned about liability under the state's anti-abortion laws.
Several abortion-related statutes were at issue in the case - some enacted prior to Roe v. Wade, some enacted after Roe but before Dobbs, and some enacted after Dobbs. Regarding the state's post-Dobbs abortion ban, US District Judge Robert Pitman held that the language of the law does not allow the state to pursue penalties for abortions that occur outside Texas, nor does it allow penalties for facilitating an out-of-state abortion.
However, Pitman found that some of the state's older anti-abortion laws - enacted before Roe but largely dormant since that decision - might be interpreted to apply to the plaintiffs' activities in supporting out-of-state abortion. After the Dobbs decision, questions arose regarding whether those pre-Roe laws would be revived. Holding that those laws were likely repealed by implication, Pitman granted a preliminary injunction preventing the state from enforcing them.
Meanwhile, in another abortion-related case, Slattery v. Hochul, the 2nd Circuit Court of Appeals reversed a federal district court's dismissal of an employer's challenge to a New York law that prohibits employment discrimination on the basis of a person's reproductive health decisions. In that case, the plaintiff, a crisis pregnancy center, alleged that the New York law infringed upon its First and Fourteenth Amendment rights "by preventing it from dissociating itself from employees who seek abortions," which it argued "undermines its anti-abortion message."
While the ultimate outcome remains uncertain, the 2nd Circuit's decision allows the employer's challenge to the New York law to continue.