‘Stunning’ threat in Texas abortion case steps up Paxton criminalization crusade
When a Texas court ruled that a 31year-old woman with a non-viable pregnancy could have an abortion despite the state’s strict bans, the Texas attorney general, Ken Paxton, responded with a brazen threat to prosecute “hospitals, doctors, or anyone else” who would assist in providing the procedure. The letter he sent Texas hospitals hours after the ruling, threatening first-degree felonies that could result in life in prison, was a “stunning” move indicative of his longstanding crusade to criminalize abortion care, say legal experts and advocates.
“It is extraordinary that Paxton would threaten hospitals and doctors with this letter before even winning an appeal,” Mary Ziegler, a UC-Davis law professor who focuses on reproductive rights, told the Guardian. “It’s a very unusual maneuver, but does certainly reflect his ultimate goal of wanting to go after abortion providers and supporters at all costs.”
After Paxton sent his menacing letter to Texas hospitals, the state petitioned the all-Republican Texas supreme court to block the ruling allowing Kate Cox to access an abortion in Texas. On Friday, the state’s highest court temporarily halted the lower court order that had allowed Cox to receive emergency abortion care, before ruling on Monday to vacate the order that would have permitted her to get care in her home state.
With a risky pregnancy that threatened her health, Cox waited nearly three days for the Court to issue a final order. On Monday, hours before the final order from the court, she finally fled out-of-state for abortion care at 20 weeks pregnant.
Cox’s attorneys called Paxton’s strategy a “fearmongering” tactic and an effort to “bulldoze the legal system” to ensure Cox continued to suffer.
Her case underscores the aggressive nature of the state’s top attorney when it comes to not only enforcing a ban on abortion even in dire circumstances, but creating a climate of fear around abortion that targets providers.
“Ken Paxton was trying to say who the judge’s emergency order protected or didn’t protect – but he doesn’t actually have the authority to do that,” said Joanna Grossman, professor at the Southern Methodist University Dedman School of Law in Dallas. “His behavior here is a continuation of what he’s been doing for the past three years and beyond – and that is enforcement through fear. His MO is to make threats, be a bully, and scare people and providers out of abortion access. The actual legal rules aren’t as important to him.”
Backed by the state’s major antiabortion groups, Paxton has cemented himself as a staunch anti-abortion advocate since his tenure as a Texas house and senate representative, and even more so as attorney general starting in 2015, from which position he has zealously litigated against abortion rights and openly celebrated the fall of Roe v Wade.
Paxton’s support and defense of 2021’s Senate Bill 8 – a near-total abortion ban that empowers private citizens to sue those who “aid or abet” care – helped create a chilling effect among abortion providers, who stopped providing care months before the Dobbs decision that overturned Roe, out of fear of threats to their livelihoods. The attorney general has also successfully sued the Biden administration to fight against protections for Texas physicians who perform abortions in emergency circumstances.
And his office is currently battling a legal challenge that seeks to clarify the medical exceptions in Texas abortion law for doctors who say that the law is so vague that their hands are tied even in major emergencies. Filed by 20 women who have faced often severe pregnancy complications – including near-death circumstances – as a result of being denied emergency abortions, the case is now before the Texas supreme court, which granted Paxton’s recent appeal.
In 2022, shortly after the US supreme court’s reversal of Roe v Wade and a month before a law banning abortions in almost all circumstances was slated to take effect in Texas, Paxton began to sharpen his aim at providers by issuing an advisory encouraging – and vowing assistance to – local prosecutors who pursue criminal charges against abortion doctors with a potential prison sentence of up to five years, writing that providers could be immediately held “criminally liable”, under an antiquated Texas statute.
“It was a shot across the bow to abortion doctors and supporters,” said Blake Rocap, director of the Sissy Farenthold Reproductive Justice Defense Project at the Rapoport Center for Human Rights and Justice at the UTSchool of Law. “Historically, Paxton’s been a foot soldier in the march to criminalizing care. That’s been the aim all along for him.”
Dr Ghazaleh Moayedi can speak directly to experiencing fear of prosecution by Paxton. Along with a number of abortion funds, she filed suit against Paxton last year to obtain legal protections after the attorney general indicated he could prosecute people who help Texans access abortions out of state. At the time, Moayedi, who had been traveling to states like Kansas to provide abortion care after Texas’s law took effect, stopped seeing patients from Texas, because she was frightened by the threat of possible jail time.
“The state has been coordinating these efforts against us for a long time,” she said in reference to Cox’s case. “It is exhausting to be constantly vigilant, especially when I know I’m a good doctor. The case reminds us that we could still be put in the crosshairs. It continues to worry me.”