Brave, Brave Sir Paxton

Lawyers for abortion funds want Texas Attorney General Ken Paxton to testify in their lawsuit. He fled his home Monday while being served a subpoena that was later quashed by a judge. https://t.co/WVjHVS2rVY

— Texas Tribune (@TexasTribune) September 28, 2022

So this is why Ken Paxton ran from the process server on his front lawn. Not because he feared for his life or because he feared he'd do grievous harm to the man with the envelope in his hands, but because he feared being called to testify in open court this close to the election on the neutron bomb of political topics today:  abortion.

The lawsuit was brought by a group of nonprofits, called abortion funds, that help Texans pay for abortions in states where the procedure remains legal. The abortion funds argue that Paxton’s statements since the overturn of Roe v. Wade, coupled with the actions of conservative lawmakers, have made them so fearful of potential criminal and civil penalties that they have stopped their work.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.

Okay, so, no, the AG can't prosecute criminal cases (something the Texas Court of Criminal Appeals just affirmed; again). So if a woman in a county where the DA won't criminalize abortion leaves the state to get one (why would a doctor test the DA's convictions?), can the AG bring a civil action against her?  Or the charity giving her the funds for the trip and the procedure?  Well, Ken Paxton has said he could.  Did he mean it?  Well...maybe; maybe not.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

This is the judge who quashed the subpoena.  Safe to say he may be reconsidering that position.  And what Paxton said is not the only issue in this case:

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly. 

But that goes back to Paxton's statements, too:

As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.” 

The AG can do that if the local prosecutor asks for the help (Paxton can't pursue criminal charges unilaterally).  The AG's office argued the AG can't file criminal cases, but that's not the heart of the issue.  This is:

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

In 2021, the state Legislature passed a so-called “trigger ban” that went into effect 30 days after the U.S. Supreme Court certified its judgment overturning Roe v. Wade.

The trigger law comes with heightened criminal penalties — up to life in prison — and says that the attorney general “shall” seek civil penalties of at least $100,000 per abortion. 

Paxton's testimony about whether or not that law will be enforced is obviously critical in this suit.  But Paxton would rather eat a bug sandwich or fuck a pig on live TV ("Black Mirror" shout-out) than testify in court that he will promise, if re-elected, to never pursue any case under this statute.  Paxton's statements make it clear he wants to, and not just the women involved, or the charitable funds, but companies like, oh, say... Amazon:

But Paxton has alluded to wanting to find ways to use these civil penalties against people who pay for abortions out of state. In a TV interview with NewsNation, Paxton was asked about companies that are paying for employees to leave the state to get abortions.

“We’re going to be looking at whether the language covers at least the civil side, and that’s obviously what we can deal with,” Paxton said. “These penalties could even be for corporations, over $100,000 per violation. So we’re looking at that literally as we speak.” 

And the AG's lawyers, once again, preached it round and square:

Lawyers for the state disputed that concern Tuesday, saying that “for the most part,” the activities that abortion funds want to resume would not put them in danger of civil penalties from the attorney general’s office.

But in their filings in response to the lawsuit, the state wrote that they see penalizing people who help pay for abortions out of state as “a means to an end — the protection of human life, including the life of the unborn.”

“That interest continues whether the Texan mother seeks an abortion in Denver or Dallas, in Las Cruces or Lamesa,” the filing reads. “It does not matter if the travel and hotel are in Albuquerque or Austin—the procurement in Texas of the means of an abortion has intruded upon the State’s interest in the protection of human life.”

Small wonder the court is considering making Paxton testify so he can properly assess the equities in this case.

Beto is running ads about the abortion law in Texas, hanging it around Abbott's neck like an albatross.  Rochelle Garza, Paxton's Democratic opponent, needs to be doing the same thing to Paxton.  I still think this is the issue that could blow things up for Republicans in Texas.