Eleanor Klibanoff

Texas conservatives test how far they can extend abortion and gender-transition restrictions beyond state lines

In the months since Texas outlawed abortion and prohibited adolescents from receiving gender-transition care, women have flooded abortion clinics in nearby states and parents with transgender children have moved to places where puberty blockers and hormone therapy remain legal.

So now, Texas conservatives are testing the limits of their power beyond state lines.

Some cities and counties have passed so-called travel bans aimed at stopping Texans from driving to abortion appointments in other states. Meanwhile, Attorney General Ken Paxton has demanded medical records from at least two out-of-state clinics that provide gender-affirming care to minors.

“This request from the Texas Attorney General is a clear attempt to intimidate providers of gender-affirming care and parents and families seeking that care outside of Texas and other states with bans,” Dr. Izzy Lowell, a Georgia physician who received one such demand letter, said in a statement.

These recent efforts to restrict or scrutinize what Texans do out-of-state raise an important question: Just how far does Texas’ authority over its residents extend?

The question of extraterritoriality — when and whether a state can impose its laws beyond its borders — is largely unresolved, legal experts say. It just hasn’t come before the courts that often. And while the right to travel is well-established in the U.S. Constitution, the local travel bans are enforced through private lawsuits, a legal loophole the U.S. Supreme Court has so far allowed to stand.

When the U.S. Supreme Court allowed states to set their own laws on abortion, it put them on a political crash course with each other. These recent legal maneuvers from conservatives in Texas indicate a willingness to wade into a Constitutional morass the country hasn’t dealt with since the lead-up to the Civil War.

“Slavery is probably the best historical parallel to what we’re seeing now,” said Kermit Roosevelt, a law professor at Penn Carey Law at the University of Pennsylvania. “Obviously, that didn’t end well. Well, it did, because we abolished slavery federally, but it was a tough road.”

Extraterritoriality, Texas-style

In most cases, state laws align pretty well with each other. All states prohibit murder and they all criminalize child abuse. When there’s conflict, it’s usually over wonky things like environmental regulations and what food additives can be used to make candy, and everyone works together to find a common-sense solution.

Even on more controversial issues, like gambling and marijuana laws, states with stricter rules usually just turn a blind eye as their residents flood casinos and dispensaries just over state lines.

“Maybe a state like Wyoming prosecutes someone who bought marijuana in Colorado and came back to Wyoming, but it doesn’t set off a battle where Wyoming is trying to get someone back from Colorado or get evidence from Colorado,” said Darryl Brown, a law professor at the University of Virginia School of Law. “States just haven't disagreed with each other so sharply that they have come to loggerheads about this.”

Until recently.

When the Supreme Court overturned Roe v. Wade, allowing states to set and enforce their own laws about abortion, it put red and blue states at odds with each other on an extremely hot-button political issue. All states still agree murder is bad. They just don’t all agree on whether abortion is considered murder.

In 1974, just after Roe was decided, the high court ruled in Bigelow v. Virginia that a “state does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State.”

But in a Columbia Law Review article, legal scholars David Cohen, Greer Donley and Rachel Rebouché note that, in addition to being an old ruling that focused on First Amendment arguments, Biglow relied in part on Roe v. Wade.

“The current U.S. Supreme Court, now that it has eviscerated Roe, could revisit Bigelow’s anti-extraterritoriality principle,” they wrote.

Roosevelt, the Pennsylvania law professor, said if you remove politically heated issues like abortion or gender-affirming care from the equation, it can make sense to let states punish bad actors and protect vulnerable residents anywhere in the country.

“Imagine states have different laws about the degree of violence that parents can inflict on children in order to chastise them,” Roosevelt said. “Is it really OK if a Texas parent takes their child to the state that allows whipping just in order to whip them? I think we’d all agree, probably not.”

But much like disagreements over whether abortion is murder, states now sharply disagree on whether providing a trans child access to puberty blockers and hormone therapy constitutes child abuse. Major medical groups, trans people and LGBTQ+ advocates say such care is lifesaving for kids who face higher rates of suicide attempts and mental health problems than their cisgender peers. But Republicans and others who oppose letting kids access gender-affirming care say medical providers have latched on to a “social contagion” to misguide parents and push life-altering treatments on kids.

In Texas, Gov. Greg Abbott previously ordered the state’s child welfare agency to investigate parents who provide their trans children with gender-affirming care even after lawmakers failed to explicitly add such treatments to the state’s definition of child abuse.

But as Paxton will likely learn with these recent administrative subpoenas to medical providers in Washington and Georgia, nothing requires states to help each other with cross-border investigations. And, in some cases, it’s even prohibited.

Washington is one of 22 states that have passed or enacted “shield laws,” that protect health care workers from extraterritorial investigations. While these laws tend to focus on abortion providers, nine states, including Washington, specifically include protections for gender-affirming care.

“If Texas wants to arrest someone who's in Washington State, one of their residents, Washington doesn't have to arrest that person and extradite them back to Texas,” Brown said.

Most notably, many of these shield laws, including the one in Washington, prohibit sharing patients’ confidential information, even if they’re issued a subpoena to do so. Seattle Children’s Hospital, which received one of Paxton’s administrative subpoenas, has sued Texas to protect records of transgender patients.

Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal, said there is nothing in the law lawmakers passed last session to ban gender-affirming care for minors that regulates what happens outside the state. The letters Paxton sent don’t mention the gender-affirming care ban, but instead came on behalf of a consumer protection investigation, which doesn’t give Paxton jurisdiction to subpoena information from non-Texas entities, Loewy said.

“More than anything it's designed to scare Texas families,” Loewy said. “This more smacks of efforts to just send a loud and clear message that the Attorney General's Office is going to do everything — whether in its power or not — to cut off access to care that trans kids in Texas really need.”

Paxton’s office has been silent as to the intent of the letters since they became public in December.

A warning sign

In Georgia, Lowell received Paxtons demand for her patient’s medical information the day it was due. The physician’s mail had been stopped for weeks after an arsonist set fire to QueerMed, her gender-affirming care clinic.

Her lawyers had to negotiate with Paxton’s office to get a one-week extension to review the letter. Lowell ultimately declined to turn over patient information.

Jeff Graham, executive director of the LGBTQ+ advocacy group Georgia Equality, said political rhetoric and misinformation can exacerbate the threats LGBTQ+ people and their medical providers face. Paxton’s demands are a warning sign, even if the attorney general knows they might fail, he said.

“People around the country really should be paying attention to [what happened at QueerMed] because it’s showing the lengths that these politicians are going to strip people from their ability to make medical decisions for themselves and their families,” Graham told The Texas Tribune.

The attorney general’s office has not sought records from any out-of-state abortion clinics, according to a review of its civil investigative demand letters. But conservative legal activist and former Texas Solicitor General Jonathan Mitchell has tried to get abortion funds to hand over records of clients they have helped obtain abortions out-of-state. A federal judge in Austin, in addition to rejecting Mitchell’s request for the records, has ruled that abortion funds are likely safe from prosecution if they help Texans pay for abortions elsewhere.

But this is unlikely to stop conservative efforts to block people from accessing certain health care outside Texas.

“There's a lot of states with laws that seem to permit them to go after out-of-state conduct, and a lot of political activists or politicians saying that we really need to do this,” said Roosevelt. “But I'm not aware of states actually doing the most aggressive thing, which is trying to prosecute an abortion provider or health care provider in another state.”

Local travel bans

Four counties and a handful of cities in Texas have passed local ordinances that prohibit using county roads to transport someone out of state to get an abortion.

These ordinances are enforced through private lawsuits instead of by government entities, the same novel legal mechanism that Texas used to ban abortions after about six weeks of pregnancy in 2021. The Supreme Court, while expressing frustration with the constitutional workaround, allowed the six-week abortion ban to stand, saying the private enforcement mechanism didn’t allow for pre-enforcement review.

In general, it’s much easier for a state or local government to regulate what happens within its borders than to try to enforce their laws in other places. But efforts to restrict travel, even within a state or county, likely will run afoul of the constitutional right to travel, which Noah Smith-Drelich, a law professor at the Chicago-Kent College of Law, said is better thought of as several intersecting rights.

“The constitutional provisions that protect your right to travel from, for example, Texas to Washington, include some provisions that may not protect your right to travel within the state of Texas,” Smith-Drelich said. “I think it's a reflection of just how important, how fundamental travel is, that there are multiple different constitutional protections that say you can't limit travel without a really good reason.”

The Supreme Court has not often been called to litigate the right to travel, Smith-Drelich said, but it’s an example judges often point to in other decisions as a fundamental right that’s not up for debate. It’s also historically been an ideologically neutral legal question.

“I don't know that it'd be optimistic about challenging Texas' restrictions on travel, in service of preventing abortion outside of Texas, in front of the 5th Circuit,” Smith-Drelich said, referring to the conservative court that hears federal appeals originating in Texas. “But I wouldn't be as pessimistic about that as I would probably most efforts to limit Texas's anti-abortion efforts.”

And, much like Paxton’s letters seeking out-of-state medical records, these bans don’t have to be enforced to incite fear among health care providers or abortion seekers and those helping them cross state lines.

History lessons

For legal scholars and historians, these efforts are a little too reminiscent of another period in U.S. history, when individual states’ laws began to sharply diverge over a highly contentious issue.

“States have very different policies on lots of different stuff, but they tend to just keep those policies within their own borders,” Brown said. “What's unusual here and what was unusual about slavery is that states were extending their own policy or enforcing their own policy in states that didn’t agree with them.”

In the 1800s, as some states abolished slavery and others clung to it more tightly, free states began passing personal liberty laws saying they would not cooperate with efforts to return escaped enslaved people to their enslavers.

Slave states, especially border states, pushed for and won the federal Fugitive Slave Act of 1850, which required free states to work with the federal government to return enslaved people to their enslavers in the South. This helped tip the nation into the Civil War.

Reconstruction, the period of putting the nation back together after the Civil War, marked a shift in the balance of power between states and the federal government.

“States lost some of what you might have described as their sovereignty or independence through that,” said Smith-Drelich. “Part of what we’ve seen through U.S. history is this move to becoming more of a country and less of a confederacy of states, and Reconstruction was a big part of that.”

The 2022 Dobbs decision, allowing states to set their own laws around abortion, in many ways represents a significant reversal of that trend. While both major political parties are angling to pass a federal law that would either prevent or preserve abortion access, the current status quo all but guarantees increased state-on-state litigation to undermine and frustrate each other’s goals.

As the Civil War demonstrated, these state-level feuds can have ripple effects far beyond the contentious political issue of the day. The American experiment requires states to work together relatively amicably under the auspices of one, overarching federal government. It’s one of the things that makes the United States different from the European Union.

“In order for us to work as a united country, states have to be able to make laws that apply in their own states,” Smith-Drelich said. “And part of that means that they can't really be making laws apply outside of their own state.”

But it remains to be seen whether the courts will see their way to maintaining that balance of power, especially without much precedent to guide them. And after a decades-long push to reshape the federal court system in the conservative image, especially in Texas, these precedent-setting cases have the potential to radically change certain accepted — but not often litigated — rights.

“Sometimes, I feel like the law is clear enough that the Supreme Court is going to follow it,” Roosevelt said. “But I don't think the law is very clear here. And abortion is definitely an issue where the justices care intensely. So I think if you want to predict what's going to happen, you basically have to just look at who's on court.”

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How Texas backlash to Obama fueled conservative drive to reinterpret US Constitution

"Part 2: Texas backlash to Obama fueled conservative drive to reinterpret U.S. Constitution" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

In November 2008, almost 70 million people turned out to vote for the nation’s first Black president and their hope for once-in-a-generation political change.

Barack Obama, a young, former community organizer, promised he’d help more people afford health care, stop the pollution of the planet, expand pathways to legal citizenship and help families dig their way out of the worst recession in decades.

With congressional majorities at his back, it seemed Republicans in D.C. would be hard-pressed to stop Obama's liberal juggernaut. But 1,500 miles away, a group of conservative attorneys were loading the canons and pointing them north.

Over the previous eight years, the Texas Office of the Attorney General had transformed from a Democrat-led bureaucratic workhorse into a Republican war machine, peppering the federal courts with conservative cases and friend-of-the-court filings. Now, Greg Abbott, a man elected by 2.5 million people to be the top lawyer for one of fifty states, stepped up to do what his fellow conservatives in Washington could not: stop, or at least slow, Obama’s agenda.

During the Obama administration, Abbott's office, and especially its elite appellate unit, the Office of the Solicitor General, became a government in exile, a refuge for the Republican party’s brightest minds. Top-tier conservative attorneys came to Texas for the chance to gain courtroom experience, burnish their bonafides and strengthen their commitment to the cause.

They had plenty of opportunities. Under Abbott, Texas brought more than 30 lawsuits against the Obama administration in six years, including an average of one suit a month in 2010. Texas used the federal courts to try to stop the federal expansion of government subsidized health care; block protections for young people who entered the country illegally with their parents; guard businesses against environmental regulations intended to stave off climate change; and even extend the fishing season by two weeks.

Texas emerged as an almost co-equal party to the federal government, casting itself as the defender of state sovereignty, federalism and the U.S. Constitution, and quietly helping push the nation’s legal apparatus to the right.

Abbott defined his role quite simply: “I go into the office, I sue the federal government, and then I go home.”

Reformation takes root

Several forces aligned to allow Texas to punch above its constitutional weight during the Obama administration.

In the previous decade, state attorneys general had taken a more proactive stance in the federal courts, banding together to pursue consumer protection and environmental regulation cases. Many states, including Texas, built solicitor general offices to improve their performance before appellate courts, and even bring cases to the U.S. Supreme Court.

This accelerated after a 2007 U.S. Supreme Court decision, Massachusetts v. EPA, granted states “special solicitude” to bring lawsuits against the federal government, effectively lowering the bar for states to get into court. The ruling’s true meaning has been hotly debated since, but Texas took it as pre-clearance to file more, and more ambitious, cases.

"The AG’s have really latched onto that,” said Paul Nolette, a Marquette University political scientist. “They’ve really expanded their ability to be, in some ways, unlike any other plaintiff. It’s just a lot easier to get into court for them.”

Other conservative states got in on the action, but Texas led the way, throwing its considerable resources into assembling multi-state lawsuits challenging anything the Obama administration put forth.

“Texas is the undisputed champion amongst conservative state litigators,” Nolette said. “Just in terms of sheer quantity of single-state cases and leading multi-state cases against Democratic administrations.”

Texas also started asking judges to issue nationwide injunctions, until then a rarely used tool that allows federal judges to extend their rulings to the whole country.

When Obama tried to protect undocumented parents of lawful citizens from deportation, Texas gathered a coalition of states to challenge the executive action. A federal judge in Brownsville determined only Texas had standing to sue — but agreed to issue a temporary injunction covering the whole country, effectively allowing one state’s objections to dictate policy for the nation.

“It was a new strategy, where one judge, in one random part of the state, all of a sudden has the power to basically bring entire federal programs to a halt,” said Stephen Vladeck, a law professor at the University of Texas at Austin. “The state of Texas was one of the first litigants to repeatedly push for this kind of relief.”

As the state’s legal tactics evolved, so did the intellectual underpinnings of their arguments. These cases weren’t about liberal or conservative politics, the argument went, but about returning to the original separation of powers laid out in the U.S. Constitution.

Obama was overstepping his executive authority, Texas argued, sidelining Congress and, most crucially, squashing state’s rights.

“If I have to, I will use one challenge after another to dismantle governmental operations that I consider violations of the Constitution,” Abbott told Texas Monthly in 2013. “I’ve had one overarching goal, and that is a strict interpretation and application of the laws and the Constitution.”

Abbott did not respond to a request for comment for this story.

Texas’ most common target was the Environmental Protection Agency and Obama's efforts to address climate change, which were viewed as a threat to the oil, gas and chemical industries that fuel the Texas economy.

In 2010, Texas sued to overturn an agency finding that greenhouse gasses were impacting public health, and then sued to block the rules intended to rein in those emissions, claiming the agency had not followed proper rulemaking procedure. When the EPA said Texas’ environmental protection plans didn’t meet federal standards, Texas sued, and when the EPA took over Texas’ programs, Texas sued.

Former U.S. President Barack Obama speaks to a crowd of 3,000 invited students and faculty at the University of Texas at Austin on Aug. 8, 2010.

Then-President Barack Obama speaks to a crowd of 3,000 students and faculty at the University of Texas at Austin on Aug. 8, 2010. Credit: Bob Daemmrich for The Texas Tribune

Texas pushed this legal strategy on cases big — the Affordable Care Act — and small. When a federal judge in Texas ordered the National Marine Fisheries Service to restore two weeks of red snapper season, Abbott touted the victory as a “big win for Texas fishermen, jobs along the Gulf Coast and — most importantly — the rule of law.”

“Texans will not stand by idly while federal bureaucrats attempt to govern by illegal emergency rule – we will fight back and we will prevail,” he wrote in a press release.

While it was easier than ever to get into the courtroom, many federal judges had not yet traveled as far down the ideological road as Texas. Abbott’s defeats seemed to fuel his fervor as much as the wins.

“It’s about principles — fundamental principles enshrined in the Constitution,” Abbott wrote in an op-ed defending the cost of his lawsuits. “Defending the constitutional principles that have made the United States truly exceptional: That’s priceless.”

And when he lost at the district court level, Abbott had a crack team on hand in the Office of Solicitor General to handle the appeals.

True believers

Ted Cruz, who would ride Texas’ Obama outrage to a U.S. Senate seat in 2012, laid the foundation for the solicitor general’s office as a legal champion of conservative causes. His successors continued to build the edifice, returning to the circuit courts and the Supreme Court again and again to defend Abbott’s multiplying forays into federal territory.

James Ho, regarded at the time as “one of the best appellate lawyers in the state (and the country for that matter),” became solicitor general in April 2008, a little less than a decade after the office was created.

“By the time I inherited the office, the Texas Solicitor General’s office had cemented itself as the state’s appellate chief, with the same power that the U.S. Solicitor General has at the federal level,” Ho told the Texas Tribune. “No one in the AG’s office could either pursue or defend an appeal without the express advance permission of the SG’s office.”

Ho, who was later appointed to the 5th U.S. Circuit Court of Appeals under former President Donald Trump, helped turn the office into a legal heavyweight. In 2009, the U.S. Supreme Court asked Texas to submit a brief in a lawsuit the state wasn’t directly involved in, a sign of respect usually reserved for the U.S. Solicitor General’s office.

“There was a saying when I was there, which is, ‘when in doubt, do what the U.S. Solicitor General’s office does,’” Ho said. “That tells you the spirit of the office, we wanted to be the premiere appellate speciality office for the state of Texas, to make sure our client’s legal rights were well-represented.”

Many of Texas’ high-profile challenges didn’t make it to the appeals stage until after Ho returned to private practice in December 2010. He left the office in the hands of a law school classmate with a similarly purebred conservative resume.

Like Ho, Jonathan Mitchell, and his deputy, Andrew Oldham, each clerked for conservative Supreme Court justices — Antonin Scalia for Mitchell, Samuel Alito for Oldham. All three men worked under Republican presidents at the elite coterie that is the Department of Justice’s Office of Legal Counsel.

From there, Mitchell had gone into academia, teaching law at George Mason University Law School, later renamed for Scalia. Today, Mitchell is best known for designing the novel legal theory that allowed Texas to sidestep Roe v. Wade and ban abortions after about six weeks of pregnancy. The law, which has survived several legal challenges, is enforced entirely through private lawsuits.

“I thought it would be an opportunity to work on some interesting cases, and an opportunity to get Supreme Court arguments, which are really, really hard to get if you’re not a state solicitor general,” Mitchell told The Texas Tribune.

Mitchell noted that the office handled a wide range of cases, including defending the University of Texas at Austin’s affirmative action policy. But by the time he took over, Texas had made a name for itself as a conservative legal force, led by Abbott — “a true believer in federalism.”

“I don’t think it was just because it was Obama and Obama’s policies,” Mitchell said. “He really believed that things had gotten out of kilter between the federal government and the states, and he wanted to restore a balance that more closely resembled what the framers envisioned.”

Attorney Jonathan Mitchell speaks before the Texas Supreme Court on Oct 28, 2021.

Attorney Jonathan Mitchell speaks before the Texas Supreme Court on Oct. 28, 2021. Credit: Supreme Court of Texas YouTube channel

As his deputy, Mitchell hired Oldham, today a judge on the 5th U.S. Circuit Court of Appeals. In addition to clerking at the U.S. Supreme Court, Oldham was a “Sentelletubbie” — a former clerk of Judge David Sentelle on the D.C. Circuit Court of Appeals.

The D.C. Circuit is unique in that it mostly handles cases related to the federal agencies that regulate daily life, like the Environmental Protection Agency, the Food and Drug Administration and the Securities and Exchange Commission.

“It’s a place where, if you have ideas about the size, nature and scope of the administrative state … It's really an opportunity for those ideas to be tested,” said Enrique Armijo, a law professor at Wake Forest University who clerked at the same time as Oldham. “I myself got more sympathetic to the idea that there is a reason these agencies exist and there’s a reason Congress created them.”

But not everyone had the same takeaway. Working for Sentelle, a deeply conservative Reagan appointee, Oldham began to develop the anti-regulatory ideas he would eventually bring to bear on Texas.

Over the past century, as the world became more complicated and Congress more deadlocked, these executive branch agencies grew in number and power, and presidents of both parties increasingly turned to administrative regulation to enact aspects of their agendas.

But during the Obama administration, Texas appointed itself top administrative regulation cop, setting up roadblocks to prevent the EPA from tackling climate change, the Equal Employment Opportunity Commission from helping former felons get hired and the U.S. Department of Health and Human Services from requiring contraception be covered on health insurance plans.

In lawsuit after lawsuit, Texas argued the Obama administration hadn’t followed the correct rulemaking procedure, new regulations were “arbitrary and capricious,” or they didn’t fully take into account the economic impact on the states. Obama was violating the separation of powers enshrined in the Constitution, using these agencies to legislate without Congressional oversight, Texas claimed; anything Congress couldn’t handle should be left to the states.

The “alphabet soup of administrative agencies that dominate modern American life,” Oldham said at a 2016 Federalist Society event at the University of Chicago, is “fundamentally illegitimate.”

Andrew Oldham testifies at a confirmation hearing before the U.S. Senate Judiciary Committee on April 25, 2018.

Andrew Oldham testifies at a confirmation hearing before the U.S. Senate Judiciary Committee on April 25, 2018. Credit: Allison Shelley for The Texas Tribune

“The reason I argue it is illegitimate is because it is not based in the way the Constitution says law should be made,” Oldham said. “The entire existence of this edifice of administrative law is constitutionally suspect.”

Conservatives have never been overly fond of regulation. But these more extreme arguments challenging the entire construct of administrative law have largely been contained to academia, in part because it’s not clear what would come after.

“There's just no way that Congress has the ability to itself decide what a safe amount of greenhouse gas in the atmosphere is, and then adopt motor vehicle standards that try to get to that place,” said Armijo. “There's not enough political will to do it. There's not enough political agreement to do it. And there's just not enough bandwidth to do it.”

Texas helped drag disputes about the legitimacy of federal agencies out of the ivory tower and into the courts, undermining Obama’s agenda by attacking the administrative state. While these legal theories gained ground in Texas, the courts weren’t quite as convinced.

Then-Texas Attorney General Greg Abbott in 2010.

Then-Texas Attorney General Greg Abbott in 2010. “I go into the office, I sue the federal government, and then I go home,” he said of his role. Credit: Bob Daemmrich for The Texas Tribune

In rejecting several of Texas’ challenges to new EPA regulations, the D.C. Circuit effectively rolled its eyes at the state’s claims that the agency hadn’t taken the proper steps to prove the need for restrictions on greenhouse gasses.

“This is how science works,” the opinion, led by Oldham’s old boss, Sentelle, read. “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

The Book of Ken

After three terms as attorney general, Abbott used his record of suing the Obama administration to successfully run for governor in 2014, taking Oldham with him as general counsel. There was no question that his replacement would be a Republican; Democrats hadn't won a statewide office in years.

This time, though, there was no former Texas Supreme Court justice in the running. The all-important Republican primary came down to a runoff between two state legislators – Sen. Ken Paxton and Rep. Dan Branch.

This marked a turning point for the office.

Attorneys general like now-Sen. John Cornyn and Abbott “who came up through the judiciary tend to be much more concentrated on issues of law,” said Ed Burbach, the former deputy attorney general for civil litigation under Abbott, now an attorney at Foley & Lardner who advises state attorneys general. But “those who came up through the legislative branch tend to be much, much more active with regard to policy issues.”

Branch attracted support from mainstream conservative groups and many of Abbott’s former deputies, but Paxton’s promised fervor for culture war issues secured him the increasingly powerful right-wing of the party.

New Texas Attorney General Ken Paxton takes the oath of office in the Senate Chamber on Jan. 5, 2015.

New Texas Attorney General Ken Paxton is administered a ceremonial oath of office by Gov.-elect Greg Abbott in the Senate chamber on Jan. 5, 2015. Credit: Bob Daemmrich

One of Paxton's earliest supporters was Kelly Shackelford, founder of First Liberty Institute, a conservative religious liberty law firm based in Plano. Paxton also got support, albeit not a full endorsement, from state solicitor general-turned-senator Ted Cruz.

“In the race for Attorney General,” one ad said, “there’s only one constitutional conservative like Ted Cruz.”

Paxton won the runoff and the general, and assumed his seat behind the wheel of the legal machine built by his predecessors. Over the next eight years, he would drive Texas — and the nation — further to the right, faster than ever before.

Paxton continued much of Abbott’s agenda — suing the EPA over Obama’s environmental agenda; the Food and Drug Administration over execution drugs; and the Department of Labor over its efforts to require overtime pay for low-wage workers.

But for his more right-wing base, Paxton’s election came at a crucial moment: Less than a year later, the U.S. Supreme Court upheld the right to same-sex marriage, galvanizing conservative Christians nationwide.

Religious liberty, once on the fringes of the conservative legal movement, moved to the center of the conversation, as Christian groups took to the courts to claim that everything from requiring a baker to sell a wedding cake to a gay couple to allowing cities to turn away foster agencies that wouldn't place children with same-sex couplesviolated their sincerely held beliefs.

These groups found an ally in the Texas Office of the Attorney General, where Paxton used taxpayer dollars to build out his own team of lawyers to carry the religious liberty banner.

While Abbott had collaborated with First Liberty on certain cases, Paxton created a revolving door between Shackelford’s firm and the Office of the Attorney General.

Despite criticism, he hired First Liberty chief legal officer Jeff Mateer as first assistant attorney general. Former Solicitor General Ho, by then one of First Liberty’s most active volunteers, jumped to Mateer’s defense, calling him “an exceptional legal talent and a zealous and powerful advocate for his clients.”

It would later come out that Mateer, in 2015, gave a speech in which he called transgender children part of “Satan’s plan” and the legalization of same-sex marriage “disgusting.” Ho has said he was not aware of those comments at the time.

Hiram Sasser, First Liberty’s general counsel, became Paxton’s temporary chief of staff, and other lawyers from First Liberty and the Alliance Defending Freedom, a similarly aligned law firm, filled out the office’s top ranks.

First Liberty declined to make Mateer or Sasser available for an interview. In a statement, Sasser said the firm works with “lots of government lawyers from state and federal offices across the country, including the Bush, Obama, Trump, and Biden administrations to protect religious liberty and value those partnerships when we can forge them for specific projects.”

But this close-knit relationship meant Texas stood ready to swat down any efforts to shore up protections for LGBTQ+ people — like May 2016 guidance that said schools must allow students to use the bathroom that aligns with their gender identity.

Paxton followed the Abbott playbook, assembling a coalition of red states interested in challenging the guidance. But his office went a step further to orchestrate a lawsuit, drafting a bathroom policy that was at odds with the guidance and shopping it around to school districts.

Once a school district voted to adopt the policy, Paxton would have the lead plaintiff he needed to get this case in front of a judge.

But not just any judge.

Power of the gavel

All 105 students in Harrold Independent School District attend class in one building. In 2016, when Paxton’s office came knocking, no one could remember the district ever having a transgender student. Nonetheless, this tiny district near the Oklahoma border became the face of a 13-state lawsuit challenging the bathroom guidance.

This wasn’t a random selection. By enlisting Harrold ISD as the main plaintiff, Paxton could file the lawsuit in Wichita Falls, where he could virtually guarantee it would be heard by a conservative judge.

Under Paxton, the Office of the Attorney General began exploiting a quirk of Texas’ federal judicial structure, where large swaths of the state are overseen by just one federal judge. Between 2015 and 2018, almost half of Texas’ lawsuits against the federal government were filed in Wichita Falls and heard byJudge Reed O’Connor, a former Cornyn aide and longtime Federalist Society member appointed to the federal bench by Bush in 2007.

O’Connor delivered Paxton’s office several big wins, including a later-overturned repeal of the Affordable Care Act, and served as a timely object lesson in the importance of having someone who agrees with your legal philosophy on the bench.

This lesson was not lost on two former occupants of Paxton’s office who were well-placed to do something about it. After their stints at the attorney generals’ office, Cornyn and Cruz had ascended to the U.S. Senate, and, specifically, the Senate Judiciary Committee, where they wielded great influence over Texas’ lifetime appointments to the federal bench.

U.S. Senator John Cornyn (R-TX) prepares a U.S. Senate Judiciary Committee hearing to confirm five nominees to fill vacancies on federal courts in Texas, on Capitol Hill in Washington, D.C. September 7, 2016. The candidates were nominated earlier this year after being recommended by Senators Cornyn and Ted Cruz (R-TX) to President Obama. (photo by Allison Shelley)

U.S. Sen. John Cornyn at a U.S. Senate Judiciary Committee hearing to confirm five nominees to fill vacancies on federal courts in Texas, on Capitol Hill in Washington on Sept. 7, 2016. Credit: Allison Shelley

U.S. Senator Ted Cruz (R-TX) speaks during a U.S. Senate Judiciary Committee hearing to confirm five nominees to fill vacancies on federal courts in Texas, on Capitol Hill in Washington, D.C. September 7, 2016. The candidates were nominated earlier this year after being recommended by Senators Cornyn and Cruz to President Obama. (photo by Allison Shelley)

U.S. Sen. Ted Cruz speaks during a U.S. Senate Judiciary Committee hearing to confirm five nominees to fill vacancies on federal courts in Texas, on Capitol Hill in Washington on September 7, 2016. Credit: Allison Shelley

U.S. Sens. John Cornyn and Ted Cruz at a U.S. Senate Judiciary Committee hearing to confirm five nominees to fill vacancies on federal courts in Texas, on Capitol Hill in Washington on Sept. 7, 2016. Credit: Allison Shelley for The Texas Tribune

In 2013, the senators created the Federal Judicial Evaluation Committee to help vet potential judicial nominees. The committee included Ho and his wife, Allyson, First Liberty’s Shackelford, as well as former Texas Supreme Court justices, federal judges and other high-powered attorneys.

But few judges were appointed in Texas, due to a lack of urgency from the Obama administration and counterparty intransigence from Cornyn and Cruz.

By the end of the Obama administration, Texas had 11 district court vacancies out of 52 total seats, all of which were classified as emergencies by the Department of Justice, and two vacancies on the 5th U.S. Circuit Court of Appeals.

Though Texas saw some progress on judicial nominations towards the end of the Obama administration, the majority of the spots remained open, leaving the door open for a Republican president to help usher in more ideologically aligned choices.

In the meantime, though, Texas still had O’Connor, who in 2016 heard the 13-state lawsuit about Harrold ISD’s bathroom policy.

In court, Austin Nimocks, an assistant attorney general who previously worked for the Alliance Defending Freedom, said the case wasn’t about trans kids. It was about defending the Constitution.

[Part 3: Under Trump, Texas’ foot soldiers became federal judges, securing a conservative stronghold in the courts]

The Obama administration’s guidance was “legislative in nature,” Nimocks said, and was “usurping the authority” of school districts by forcing them to “mix the sexes in intimate areas.”

O’Connor granted a temporary nationwide injunction, blocking the guidance from going into effect anywhere in the country.

The Department of Justice appealed to the 5th Circuit, but in the end, it didn’t matter. Just a few months later, Donald Trump won the 2016 presidential election.

U.S. President-elect Donald Trump greets supporters during his election night rally in Manhattan on Nov. 9, 2016.

U.S. President-elect Donald Trump greets supporters during his election night rally in Manhattan on Nov. 9, 2016. Credit: REUTERS/Mike Segar

[Part 3: Under Trump, Texas’ foot soldiers became federal judges, securing a conservative stronghold in the courts]

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Women denied abortions sue Texas to affirm exceptions to the laws

Five Texas women who say they were denied medically necessary abortions are suing the state, seeking to clarify when the procedure is permissible under state law, The New York Times reported Monday.

The lawsuit will be formally announced at a press conference Tuesday, where the women will share their experiences navigating life-threatening pregnancy complications in the largest state in the nation to ban abortion.

The plaintiffs are not asking the courts to overturn Texas’ abortion bans, but rather to affirm that doctors can provide abortions in cases where continuing the pregnancy would be unsafe, or if the fetus is unlikely to survive outside the womb, the Times reported.

Texas’ abortion laws allow doctors to terminate pregnancies only to save the life of the pregnant patient. There have been several bills filed to widen those exceptions to allow abortion in cases of rape or incest, or pregnancy anomalies that make the fetus incompatible with life, but they are not expected to advance in the Republican-dominated Legislature.

Lauren Hall, one of the plaintiffs named in the suit, was thrilled when she learned she was pregnant. But at her 20-week anatomy scan, she learned that her fetus was developing without a skull, a lethal fetal anomaly known as anencephaly.

Hall’s doctor said they couldn’t help her, she told The Texas Tribune in September. She would have to remain pregnant until she miscarried or delivered a baby that could not survive outside the womb.

Or, the doctor quietly suggested, Hall and her husband could leave the state.

“And she said, ‘If you do that, don’t tell anybody why you’re traveling, don’t tell your jobs, don’t tell anyone at the airport,’” Hall told the Tribune. “Which sounds extreme, but Roe had just been overturned. Everyone was so scared.”

This tragic, earth-shattering news, and the unimaginable choice she now faced, sparked a mental health crisis, Hall said. But she worried that telling a health care provider about her situation would invite more questions and, potentially, legal repercussions.

Hall and her husband eventually cobbled together the money to buy last-minute flights to Seattle, where she was able to get an abortion. Hall said many people in her life had no idea how narrow the exceptions in the law were until she experienced it firsthand.

“They were just all shocked, like, ‘Surely, there’s an exception for this,’” Hall said. “It just didn’t occur to them that a ban would include cases like this.”

One of the other plaintiffs, Amanda Zurawski, learned at 17 weeks of pregnancy that she was miscarrying and at a high risk for infection. But the fetus still had a heartbeat and her life wasn’t in danger, so she was sent home until she became septic.

Zurawski, who attended the State of the Union in February as First Lady Jill Biden’s guest, was left physically and emotionally scarred by the delay; one of her fallopian tubes is permanently closed, and, she told the Times, she’s terrified as she resumes in vitro fertilization treatment.

The lawsuit will be filed by the Center for Reproductive Rights, a New York legal group that has led many of the recent legal fights to protect abortion access. The Center for Reproductive Rights unsuccessfully challenged Texas’ Senate Bill 8, which in 2021 banned abortion after about six weeks of pregnancy, and argued on behalf of Jackson Women’s Health Organization in the case that overturned Roe v. Wade last summer.

The group says this new Texas suit is the first lawsuit brought by people who have had their pregnancy care directly impacted by new, post-Roe abortion laws.

“I don’t think we’ve ever seen anything like this in the nation, having people with pregnancy complications having to sue the state,” Nancy Northup, president of the Center for Reproductive Rights, told the Times. “It puts a face on the reality of what it means when you criminalize abortion care. It shows that abortion care is health care.”

Disclosure: The New York Times has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/07/texas-abortion-lawsuit/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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Texas Republicans are trying to sidestep abortion after Roe's demise

For decades, the abortion battle lines in the Texas Legislature were as clearly drawn as they were deeply entrenched. Every two years, Republicans would try to find new and novel ways to outwit Roe v. Wade, while Democrats relied on the courts as a bulwark against further restrictions.

But now, the deed is done, the war is won and abortion is almost entirely banned in Texas. The number of monthly legal abortions in the state has dwindled into the low single digits.

In overturning Roe v. Wade, the U.S. Supreme Court not only undid the constitutional protection for abortion. It also made irrelevant many of Texas’ most contentious political scuffles of the past half-century, forcing both sides to revisit their time-honored legislative strategies.

This session, Democrats are the ones stoking outrage and trying to circumvent the courts, while many Republicans are hoping to sidestep the issue entirely, focusing instead on property taxes, education issues and anti-LGBTQ efforts.

None of the “Big Three” — governor, lieutenant governor and speaker of the house — have indicated they intend to focus on abortion this session, likely hemming in both the rightward edge of the Republican Party, which is pushing for additional restrictions, and Democrats, who are hoping to chip away at the near-total bans.

“Obviously, we’re not going to be able to repeal the legislation,” said state Rep. Donna Howard, a Democrat from Austin. “So we focus on mitigating damage and making our primary focus access to health care.”

Pushing for more

While the overturn of Roe v. Wade may move abortion down the priority list for some Republicans, the issue certainly isn’t disappearing from the discourse anytime soon.

As of Friday, 151 lobbyists had registered their intent to advocate for and against abortion legislation this session, including from Texas’ aggressive, nationally influential anti-abortion movement.

“We’ve just had a huge historical victory,” said John Seago, with Texas Right to Life. “But in our opinion, the victory is not fully accomplished, it’s not really secured, until we enforce our laws.”

Immediately after the decision, some anti-abortion Republicans promised legislation to tighten the existing laws, which prohibit abortion except to save the life of the pregnant patient.

A main target is companies that help pay for employees’ out-of-state abortions. Rep. Jared Patterson, a Republican from Dallas, has filed a bill that would prevent those companies from receiving tax incentives from the state.

Rep. Briscoe Cain, a Republican from Deer Park, has promised to file a bill that circumvents district attorneys who won’t bring abortion-related charges. Cain has not yet filed that bill; he did not respond to request for comment.

A similar bill was filed that would allow the attorney general to take over election fraud cases.

The Attorney General would also be permitted to seek financial penalties from any district attorney who “prohibits or materially limits the enforcement of any criminal offense,” under two bills filed in the House and the Senate.

“Rather than adopt politically-motivated virtue signaling and blanket immunity for criminals, district attorneys have a duty to evaluate the merits of each alleged crime on a case-by-case basis to ensure the public safety of Texans,” said state Rep. David Cook, a Republican from Mansfield who filed the legislation alongside state Sen. Tan Parker of Flower Mound, in a press release.

House Speaker Dade Phelan mentioned the role of district attorneys in curbing crime rates in his opening remarks to the House.

“If rogue district attorneys will not uphold the law,” Phelan said, “it is time to rein them in.”

The legislation does not address abortion directly, but Seago said these efforts will help the cause.

“But the devil’s in the details,” Seago said. “Are we just going to punish those DAs for not doing their job, or are we going to adopt tools to go around them to make sure the laws are enforced?”

Texas will likely see more anti-abortion bills between now and the March 10 filing deadline. Other states have seen legislation that would criminalize pregnant people who get abortions, tighten restrictions on medication abortion and institute more roadblocks for minors seeking abortions.

But in a busy session, with a budget to negotiate and a surplus to spend down, any new proposals will be competing with myriad other Republican priorities.

“That’s one of the challenges that we’re gonna have now,” Seago said. “We’ve had this historic victory, but we’re always competing with other issues.”

Pushing for expanded exceptions

Democrats, meanwhile, are hoping to expand the list of circumstances in which health care providers are permitted to perform abortions. Bills have been filed that would allow abortions in cases in which the fetus is incompatible with life, to preserve the mental health of the pregnant patient or in cases of rape or incest.

But to make any progress on that front, Democrats will need Republicans to join their cause. While a few have shown an interest in adding rape and incest exceptions, Lt. Gov. Dan Patrick has thrown cold water on even that incremental step.

“Whether anything else goes beyond [the existing exceptions], at this point, I don’t know,” Patrick told WFAA, a TV station in Dallas, last week. “I don’t hear a groundswell for it … I’d have to see a big groundswell.”

Gov. Greg Abbott told WFAA that he would like the Legislature to clarify the existing exceptions, but did not commit to whether he would sign a rape and incest exception if it passed.

There does seem to be bipartisan interest in expanding women’s health care, however. One of Phelan’s top priorities is expanding postpartum Medicaid, from two months after birth to a full year. The Senate has resisted similar proposals in the past.

“Thankfully, we’ve heard a lot of conservatives in the last two years, since this last session, come on board,” Seago said. “They’re seeing that this makes good sense financially, and it’s just the right thing to do.”

Democrats have also filed bills that would expand maternal health care, increase funding for family planning and strengthen the social safety net.

“Hopefully, my colleagues who have been pushing their so-called pro-life agenda … will put their money where their mouths are and help us take care of these moms and babies,” Howard said.

Democrats are also pushing to expand access to contraception, especially for minors. Texas teens almost always have to get parental consent to access birth control. One of the few programs that offered confidential contraception was recently blocked by a federal court.

“We’ve said all along, if you want to avoid abortions, the best way we can all come together is to prevent the unplanned and unwanted pregnancies in the first place,” Howard said. “And part of that has to do with access to contraceptives.”

Rep. Ana-Maria Ramos, a Democrat from Dallas, has filed a bill that would allow minors to access birth control without parental consent. Ramos, who had her first child at 15, said the state’s high teen birth rate is evidence that young people are having sex — and that they need more tools to do so safely.

“The only reason I was able to get my GED, get my law degree and become a legislator was because I was able to get contraception and able to plan a future for myself and my daughter,” Ramos said.

Democrats and Republicans are expected to file additional bills between now and the deadline in March, each trying to move the needle in opposite directions. Ramos said she’s hopeful that women’s health care will emerge as the central issue.

“There’s not much more they can do to strip away women’s rights,” Ramos said. “Of course, you say that, and then they think of something else.”

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/01/23/texas-legislature-abortion/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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Texas Attorney General Ken Paxton fled his home to avoid being served with subpoena: court record

"Texas Attorney General Ken Paxton fled his home to avoid being served with subpoena, court record says" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Texas Attorney General Ken Paxton fled his home in a truck driven by his wife, state Sen. Angela Paxton, to avoid being served a subpoena Monday, according to an affidavit filed in federal court.

Ernesto Martin Herrera, a process server, was attempting to serve the state’s top attorney with a subpoena for a federal court hearing Tuesday in a lawsuit from nonprofits that want to help Texans pay for abortions out of state.

Reference

Court documents detailing a process server's attempt to deliver a subpoena to Texas Attorney General Ken Paxton at his McKinney home on Sept. 26.

(738.7 KB)

When Herrera arrived at Paxton’s home in McKinney on Monday morning, he told a woman who identified herself as Angela that he was trying to deliver legal documents to the attorney general. She told him that Paxton was on the phone and unable to come to the door. Herrera said he would wait.

Nearly an hour later, a black Chevrolet Tahoe pulled into the driveway, and 20 minutes after that, Ken Paxton exited the house.

“I walked up the driveway approaching Mr. Paxton and called him by his name. As soon as he saw me and heard me call his name out, he turned around and RAN back inside the house through the same door in the garage,” Herrera wrote in the sworn affidavit.

Angela Paxton then exited the house, got inside a Chevrolet truck in the driveway, started it and opened the doors.

“A few minutes later I saw Mr. Paxton RAN from the door inside the garage towards the rear door behind the driver side,” Herrera wrote. “I approached the truck, and loudly called him by his name and stated that I had court documents for him. Mr. Paxton ignored me and kept heading for the truck.”

Herrera eventually placed the subpoenas on the ground near the truck and told him he was serving him with a subpoena. Both cars drove away, leaving the documents on the ground.

On Twitter, the attorney general said his sudden departure was motivated by concerns for his family's safety.

"It’s clear that the media wants to drum up another controversy involving my work as Attorney General, so they’re attacking me for having the audacity to avoid a stranger lingering outside my home and showing concern about the safety and well-being of my family," he wrote in a tweet.

Paxton has been under indictment for securities fraud for seven years and faces a whistleblower lawsuit from former top deputies who accused him of abuse of office. Paxton has denied wrongdoing.

He was forced into a runoff for the Republican nomination for another term in office after high-profile Republicans, including former Texas Supreme Court Justice Eva Guzman and Land Commissioner George P. Bush, tried to unseat him. But Republican voters chose him over his intra-GOP challengers, who criticized his legal and personal scandals on the campaign trail.

He faces Democrat Rochelle Garza in November.

Disclosure: Chevrolet has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/09/26/texas-attorney-general-ken-paxton-subpoena-abortion-lawsuit/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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The Supreme Court may shutter a Texas abortion clinic that weathered decades of restrictions

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SAN ANTONIO — As the frosted-glass window slides open, a dozen heads pop up, all with the same anxious, expectant look. One by one, women are called up to the desk at Alamo Women’s Reproductive Services to learn whether and when they can get an abortion.

For months, the clinic has had to be the bearer of bad news, telling clients that they were too far along to terminate their pregnancies in Texas. It doesn’t get any easier, employees said, explaining again and again that the state has banned abortions after about six weeks, a point at which many don’t even know they are pregnant.

But recently, the clinic has had to flip that script. Many of the women who were seen for an initial appointment on a recent Tuesday weren’t too late for an abortion — they were too early.

One patient said she took two pregnancy tests, one positive, one negative, so she decided to come in just to be safe. Nothing showed up on her ultrasound, so clinic staff told her to take another test in a week and come back.

She leaned in, twisting her paperwork in her hands.

“Can I just take the [abortion] pill to be sure?”

Many patients are taking daily pregnancy tests, clinic director Andrea Gallegos said, and coming in at — or before — the first sign of pregnancy, terrified that they’re going to miss the six-week window.

“There’s some patients we see two, three times for sonograms before we actually see evidence and before we can give the pill,” Gallegos said. “But at least we catch it before six weeks.”

It’s far from perfect — the clinic is still having to turn away patients who are beyond the legal limit, and Gallegos worries most of all about the patients who know they’re beyond six weeks and don’t even make an appointment.

But over the last nine months, abortion clinics, and the patients they treat, have started to adapt to life under the new law.

This is what abortion clinics in Texas have done for decades. They add waiting periods and read the mandated script. They force patients to listen to a description of the fetus from the required sonogram. They fight new laws in court, and at the same time, race to comply with them, always bobbing and weaving to ensure they’re still able to provide abortions.

But any day now, the U.S. Supreme Court may deliver the knockout punch these clinics have feared for decades.

“If we can’t do abortions, then these clinics will no longer exist,” Gallegos said. “For the first time, I think we all just feel really helpless.”Andrea Gallegos, executive administrator of Alamo Women’s Reproductive Services in San Antonio, stands outside the facility for a portrait on June 14, 2022. Credit: Kylie Cooper/The Texas Tribune

After the bans

Last week, Gallegos sat at the front desk of Tulsa Women’s Clinic, the sister clinic to Alamo Women’s Reproductive Services, looking out at the waiting room. For months, every chair had been occupied as women poured over the state line, seeking abortions they couldn’t get in Texas.

But in late May, Oklahoma passed a law banning abortion from the moment of fertilization, and ever since, the room has been empty.

Early on, the clinic fielded a lot of phone calls and encouraged callers to come in for a sonogram, to see how far along they were and learn about their options, limited as they might be. The clinic can help connect patients with funding to help them travel out of state, and provide follow-up care when they return.

A few people who came in were less than six weeks pregnant, so in a role reversal, staff sent them to clinics in Texas for abortion care.

“A lot of people who come to our clinics, this is the first time they’ve seen a physician about their pregnancy,” Gallegos said. “This is their first sonogram. They may decide they want to continue the pregnancy, but they don’t have an established OB, so we give referrals for that. We’re a line of support, no matter what they decide.”

But as word has spread about the new law, the phone has stopped ringing.

“It’s really scary,” Gallegos said.

The clinic is keeping the lights on and the staff employed for the time being, but in the long term, it can’t operate an abortion clinic in a state that doesn’t allow abortions.

And soon, it won’t just be Oklahoma. In the coming weeks, the U.S. Supreme Court will rule on a case that is expected to overturn Roe v. Wade, the landmark 1973 decision that established a constitutional protection for abortion early in pregnancy.

If the final ruling aligns with a draft version that was leaked in early May, it will be up to each state to set its own laws around abortion. More than half of all states, including Texas and Oklahoma, are expected to outlaw the procedure.

After decades of fighting to stay open, abortion clinics in those states will likely have to close their doors. But as the last nine months — and the last few decades — in Texas have shown, the demand for abortion care won’t disappear quite as easily.

A staff member wears a shirt in support of Dr. Alan Braid at Alamo Women’s Reproductive Services in San Antonio on June 14, 2022.

Credit: Kylie Cooper/The Texas Tribune

Dr. Alan Braid, abortion provider and owner of Alamo Women’s Reproductive Services in San Antonio, sits in his office for a portrait on June 14, 2022.

Credit: Kylie Cooper/The Texas Tribune

First: A staff member at Alamo Women’s Reproductive Services wears a shirt in support of Dr. Alan Braid. Last: “We’ve always been ready for whatever comes our way,” says Braid, the clinic’s owner and an abortion provider. Credit: Kylie Cooper/The Texas Tribune

50 years of fighting

As a young medical resident in San Antonio, Dr. Alan Braid was called on to treat a 16-year-old girl who’d arrived at the emergency room after a botched, illegal abortion. She was in sepsis, her vagina packed with rags, the smell of infection so overpowering that Braid backed out of the room, gagging.

She died a few days later.

This was 1973, a few months after the U.S. Supreme Court ruled on Roe v. Wade. Abortion clinics were not yet widespread, and many women continued to seek illegal abortions. Braid couldn’t stomach the idea that women were dying over what should have been, even at that time, a simple and safe medical procedure.

Braid started working part time providing abortions at a clinic in the area. Eventually, he took over ownership of Alamo Women’s Reproductive Services and Tulsa Women’s Clinic.

The San Antonio clinic is a testament to the hoops Braid has had to jump through to continue to provide abortions. In 2013, the state passed an omnibus abortion law that, in part, required clinics to comply with onerous building requirements.

Braid joined a legal challenge seeking to overturn parts of the law, but he also spent $3 million building a new clinic that complied with the new requirements. It opened on the same day the U.S. Supreme Court blocked the law from being enforced.

“We were ready, though, in case the ruling didn’t come down our way,” he said. “And I never regretted it, because we’ve been able to treat more patients and more serious cases.”

When state lawmakers passed Senate Bill 8 in 2021, which banned abortions after about six weeks, Braid was the only provider in Texas to openly violate the law, hoping to generate a lawsuit that would get it overturned. He was sued three times, but more than nine months later, those cases are stalled and the law remains in effect.

In hindsight, he regrets performing one abortion in violation of the law. He wishes, instead, he had performed many more.

“It would have been risky, but I’m more and more convinced that the law would have been done in a month if I’d just kept providing abortions as usual,” Braid said.

Now, once again, he’s considering his next move. If the Supreme Court overturns Roe v. Wade, the clinics in Oklahoma and Texas will close. He’s considered relocating to New Mexico or Colorado, or finding a Native American tribe that would let him open a clinic on tribal lands. A friend suggested commandeering a ship and heading for international waters.

But he’s in his late 70s now, and starting over is easier said than done. There was a time, in the early days after Roe v. Wade, when he and colleagues believed abortions might become a commonplace medical procedure that you could access at your OB-GYN’s office.

The state’s crusade to eliminate abortion access has only provided Braid with more and more evidence that this kind of care is a necessity. Women drive hours to make their appointments. They come back, again and again, until they can get treated. They bring their kids, and miss work. They sit in his exam room, wracked with sobs, when they’re turned away.

Women sit in the waiting room after their appointments at Alamo Women’s Reproductive Services in San Antonio on June 14, 2022.

Women sat in the waiting room Tuesday after their appointments at Alamo Women’s Reproductive Services in San Antonio. Credit: Kylie Cooper/The Texas Tribune

Unbidden, they tell him their stories. They’re in abusive marriages. They’ve been raped. They’re on their way to college. They’re already struggling to feed the kids they have. They’re undocumented and can’t leave the state.

These women are often desperate and always resourceful, so he’s certain they’ll continue to find ways to access abortion care. Some will leave the state, or the country. Some will obtain abortion-inducing medication online. Some will turn to more desperate measures.

For decades, abortion clinics have been just as resilient as the patients they serve.

“We’ve always been ready for whatever comes our way,” Braid said. “It’s never been easy. But I also never, ever, ever thought Roe would be overturned. Ever.”

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/06/17/dobbs-supreme-court-abortion-texas/.

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ACLU files new lawsuit challenging Texas' law targeting parents providing gender-affirming care

A new lawsuit filed Wednesday is challenging Gov. Greg Abbott’s directive to investigate parents who provide gender-affirming care to their transgender children. The lawsuit was filed by the American Civil Liberties Union and Lambda Legal on behalf of three families, including the Briggle family, who have long been advocates for trans rights, including hosting Republican Attorney General Ken Paxton for dinner with their transgender son.

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The lawsuit also seeks to block the state from investigating any families that belong to PFLAG, an advocacy group for parents and family members of LGBTQ+ people.

The state is currently blocked from investigating one family that brought a prior legal challenge. This lawsuit seeks to widen the number of people who cannot be investigated under the directive; according to the filing, PFLAG’s 17 chapters in Texas have over 600 members combined.

At least nine families are currently under investigation for potential child abuse by the Texas Department of Family and Protective Services for providing gender-affirming care to their transgender children.

Gender-affirming care is endorsed by all the major medical associations as the proper treatment for gender dysphoria, which is the distress someone can feel when their assigned sex doesn’t align with their gender identity. While many young people focus on social transition — dressing differently or using different pronouns — some are prescribed puberty blockers, which are reversible, or hormone therapy.

In February, Paxton issued a nonbinding legal opinion equating gender-affirming medical care with child abuse. Days later, Abbott followed that opinion with a directive telling DFPS to investigate these cases. The agency said in a statement at the time that it would “follow Texas law … in accordance with Governor Abbott’s directive.”

The ACLU and Lambda Legal sued Abbott and DFPS on behalf of a family under investigation, seeking a court order stopping these investigations more broadly. The Texas Supreme Court ultimately ruled that the court could temporarily stop the investigation into the family that brought the suit, but would not shield all parents of transgender children.

Some investigations resumed after that ruling.

Now, the ACLU and Lambda Legal have brought this new suit on behalf of three specific families and PFLAG, arguing that “every one of PFLAG’s Texas members with a transgender child, or those with children still learning who they are, is at substantial risk of harm.”

“For nearly 50 years, PFLAG parents have united against government efforts to harm their LGBTQ+ kids,” said Brian K. Bond, executive director of PFLAG National. “By going after trans kids and their families, Gov. Abbott has picked a fight with thousands of families in Texas and across the country who are united as members of PFLAG National.”

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/06/08/transgender-texas-child-abuse-lawsuit/.

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Women denied abortions sue Texas to affirm exceptions to the laws

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