Federal judge orders Texas attorney general to testify in abortion lawsuit

Plaintiffs asked the judge to reconsider a decision to quash Paxton's subpoena.

October 5, 2022, 3:03 PM

A federal judge has ordered Texas Attorney General Ken Paxton to testify as part of a class action lawsuit brought by nonprofit abortion funds.

Abortion funds are asking the court for an injunction that would prohibit defendants from punishing organizations that facilitate abortion care outside Texas, according to court documents.

The funds are suing Paxton, several district attorneys and county attorneys in their official capacities.

The lawsuit alleges that statements made by Paxton violate the abortion funds' First Amendment right to speak about and fund abortion care. The funds also allege their ability to facilitate out-of-state abortions, which are protected by the right to interstate travel, will be restricted, according to court filings.

PHOTO: Texas Attorney General Ken Paxton speaks at a news conference in Dallas,  June 22, 2017.
Texas Attorney General Ken Paxton speaks at a news conference in Dallas, June 22, 2017.
Tony Gutierrez/AP, FILE

Plaintiffs are Fund Texas Choice, The North Texas Equal Access Fund, The Lilith Fund for Reproductive Equity, Frontera Fund, The Afiya Center, West Fund, Jane's Due Process, Clinic Access Support Network and Dr. Ghazaleh Moayedi, an abortion provider.

Nearly all abortions have ceased in Texas after the U.S. Supreme Court issued a decision to overturn Roe v. Wade in June, ending federal protections for abortion rights. Abortions in Texas are prohibited in nearly all circumstances, with exceptions such as when the mother's life or health is in danger.

Abortion rights activists and supporters march outside of the Austin Convention Center where the American Freedom Tour with former President Donald Trump is being held on May 14, 2022, in Austin, Texas.
Brandon Bell/Getty Images, FILE

A so-called trigger law banning abortions at all stages of pregnancy went into effect on Aug. 25, criminalizing providing abortion care and making it a first-degree felony if the abortion is complete or a second-degree felony if the fetus survives.

Abortion providers can also incur penalties of no less than $100,000 and may lose their professional license for performing the procedure.

The lawsuit filed in August is asking the court for assurance that abortion funds will not be criminally or civilly penalized for helping Texan women receive abortion care in other states.

U.S. District Court Judge Robert Pitman issued the order on Tuesday requiring Paxton to testify after plaintiffs asked the judge to reconsider his previous decision to quash a subpoena for his testimony.

Abortion rights demonstrators march near the State Capitol in Austin, Texas, June 25, 2022.
Suzanne Cordeiro/AFP via Getty Images

Paxton had asked the court to quash the subpoena on the grounds that as a high-ranking government official, he could not be compelled to testify in a hearing and that the plaintiffs had raised the prospect of his testimony at the last moment.

In his ruling, Pitman pushed back against this argument, saying that "exceptional circumstances exist, and Paxton should testify."

"Paxton also possesses unique, first-hand knowledge of the issues at hand and about how he will enforce the Trigger Ban. Courts have repeatedly found that even the highest-ranking officials should testify when they have personal knowledge of relevant facts," Pitman wrote.

Later adding, "In this case, Paxton has inserted himself into this dispute by repeatedly tweeting and giving interviews about the Trigger Ban. Having added his voice many times—not just in a press release or official statement but in intentional ways designed to reach Texans from within his role as Attorney General—Paxton alone is capable of explaining his thoughts and statements."

Parties have until Oct. 11 to agree whether Paxton's testimony will be a deposition or evidentiary hearing.

Last month, Paxton reportedly fled his home in a truck driven by his wife in order to avoid being served a subpoena to testify in the lawsuit. Paxton said his decision was based on safety concerns.

Lawyers for Paxton did not immediately respond to ABC News’ request for comment.

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