Texas Tribune
Anti-abortion deposition requests generate fear, not results
by By Eleanor Klibanoff, The Texas Tribune – 2024-05-10 05:00:00
SUMMARY: Anti-abortion activist Jonathan Mitchell has filed several legal petitions in Texas, aiming to investigate those involved with facilitating abortions, including abortion funds and women who seek out-of-state procedures. Although judges have not approved these petitions, they have spurred fear and confusion. Mitchell was granted one petition to depose a woman who had an abortion out-of-state, but that ruling is on hold pending appeal. Legal experts argue that Texas abortion laws and federal protections for interstate travel make it unlikely for Mitchell's tactics to succeed. However, his method of incremental legal challenges aims to create uncertainty and exploit legal gray areas, using the fear of litigation to deter people from supporting or accessing abortion services.
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Anti-abortion legal crusader Jonathan Mitchell has filed at least seven legal petitions in Texas in recent years asking to depose abortion funds, providers and researchers. While these filings have created fear and confusion, none have yet to be approved by a judge.
Now, Mitchell has moved on to targeting individual women. He has filed at least two petitions seeking to depose women he claims traveled out-of-state to terminate their pregnancies, one of which a judge granted; that ruling is on hold while an appeal proceeds.
Under state law, the person who terminates a pregnancy cannot face criminal or civil penalties. Texas abortion laws govern in-state conduct, and there is broad constitutional protection for interstate travel. A federal judge has previously ruled abortion funds are likely safe from prosecution, and just this week, a federal judge in Alabama upheld the right to leave the state to seek medical care that is legal in another state.
All of this would make it difficult, if not impossible, to take action against someone who assisted a Texan in getting an out-of-state abortion, legal experts say. But Mitchell has made his name turning long-shot legal theories into the law of the land through exactly this strategy of incremental, often losing, legal battles that exploit confusion about the law.
“These … proceedings are just about scaring people into thinking they can't help somebody going out of state to have an abortion, or they're going to go after them with a lawsuit,” said Charles “Rocky” Rhodes, a professor at South Texas College of Law Houston. “It's not about a lawsuit, it's about using fear to induce compliance.”
Rule 202 petitions
Most states, and the federal judiciary, allow a lawyer to depose someone before a lawsuit is filed to preserve their testimony. It's most commonly invoked when someone may die before the lawsuit is filed.
Texas, however, goes much further, also allowing lawyers to depose someone for the purpose of investigating a potential claim before filing a lawsuit. This provision went largely unnoticed and unused before the judiciary revised its rules in 2000 and combined it with the more typical pre-suit deposition rule, said Lonny Hoffman, a professor at the University of Houston Law Center.
“This is a very unusual animal,” Hoffman said. “We're allowing people to use the court system, the coercive power of the state, to compel someone to give testimony before a lawsuit has been brought against them.”
Conservative Texas courts, typically not so friendly to plaintiffs, have slowly imposed stricter restrictions on when they agree to grant Rule 202 petitions, Hoffman said. In 2011, the Texas Supreme Court ruled that the “intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly,” and “is not a license for forced interrogations.”
When used correctly, Rule 202 petitions can diminish frivolous lawsuits and save time, Rhodes said.
“There are strong policy reasons for the rule. I think it's a good rule,” he said. “It's just being abused here. This is harassment, and contrary to the very purposes of the rule.”
Petitions filed against women
The two petitions Mitchell has filed against women who allegedly traveled out-of-state are similar. Both were filed by ex-boyfriends who say they disagreed with their former partner's decision to get an abortion. The petitions assert each woman's mother influenced her to have an abortion.
One petition, first reported by The Washington Post, was filed last month and is sealed. The woman is represented by the Center for Reproductive Rights, which declined to make her available for an interview.
“I think anyone would agree that it's pretty terrifying to be told that you might be sued for doing something that is entirely legal,” said senior staff attorney Molly Duane. “The petition uses the word murder 23 times. This is just not a normal document for anyone to receive and I think the inflammatory nature of it is by design.”
Duane reiterated that it is legal to travel to a state where abortion remains available to terminate a pregnancy.
“This is part of a yearslong campaign by Jonathan Mitchell and other abortion extremists to intimidate people into chilling their own constitutional activity,” Duane said.
The other petition, which has not been previously reported, was granted by a judge earlier this year. The Texas Tribune is not naming either party, or the jurisdiction in which it was filed, since no lawsuit has been filed and the woman named in the filing has not been accused of a crime. Her lawyer declined to comment.
The deposition in that case is on hold while an appeal proceeds.
In a brief, the woman's lawyers argued that granting the petition would be “repugnant to the liberty interests that Texas fiercely protects,” by validating the petitioner's “scheme to harass an ex-girlfriend who has moved on from her relationship with him.”
Both petitions claim to want to investigate potential violations of Senate Bill 8, also known as the “Texas Heartbeat Act,” which prohibits anyone from “aiding or abetting” an abortion after about six weeks of pregnancy. But that law, which Mitchell helped design, only applies to abortions performed by Texas-licensed physicians. While the U.S. Supreme Court allowed the law to remain in effect, a state judge found it unconstitutional, a case that is still moving through the courts.
“It is helpful for them to just have this [Rule 202] threat rather than actually litigate,” Rhodes said. “Because if an actual challenge arises and it's determined that somebody cannot actually sue under SB 8, that would make the law entirely toothless.”
The petitions also hint at future wrongful death lawsuits, which cannot be brought against the person who terminated their pregnancy. Mitchell previously filed a wrongful death lawsuit against women who allegedly helped their friend obtain medication to terminate a pregnancy in Texas. That case is still pending in Galveston.
In a filing, the lawyers in the case now on appeal noted the risk to women across the state if judges began green-lighting Mitchell's strategy.
“A Rule 202 petitioner would be entitled to depose and seek documents from any woman who is not now pregnant, but was rumored to be at some time. Any woman who has a miscarriage could be subject to a forced interrogation. Any scorned lover could harass or intimidate their ex … for simply receiving a false-positive pregnancy test,” the lawyers wrote in their brief.
“Someone who has sex and then gains and loses weight may be forced to produce documents proving that she did not violate a wrongful death statute or SB 8,” they wrote. “The implications of a grant of this petition on the personal freedom and liberty of women to simply exist in Texas without being forced to answer to any ideologue anywhere in the world … are staggering.”
Other petitions
None of Mitchell's previous Rule 202 petitions have resulted in anything other than extended legal battles. He has filed at least nine, including three against abortion funds that help people travel out-of-state.
Two of those cases — one against the Lilith Fund, filed in Jack County, and another in Denton County against the Texas Equal Access Fund — were nearly identical. In each case, the funds countersued and Mitchell moved to dismiss their suits.
The judge on each case ruled differently — one granted the dismissal, the other denied it — and, complicating matters further, two three-judge panels from the same appeals court also disagreed. Both cases will likely go to the Texas Supreme Court.
Meanwhile, in Hood County, Mitchell filed a Rule 202 petition against the San Antonio-based Buckle Bunnies Fund. A judge denied the fund's motion to dismiss. That case is on appeal at the 2nd Court of Appeals in Fort Worth, which issued the dueling opinions in the Jack and Denton county cases.
In a rare move likely intended to address the discrepancies between the rulings, the appeals court voluntarily said it would hear this case en banc, before all seven judges, on May 22.
Mitchell filed two Rule 202 petitions against abortion providers that left Texas after the overturn of Roe v. Wade, which are still pending. He has also filed petitions against Sidley Austin, a law firm that said it would pay for Texas-based employees to travel out of state to get an abortion, and an abortion researcher at the University of Texas at Austin.
None of these petitions have resulted in any depositions, let alone any lawsuits. But they have generated a lot of fear and confusion, which legal experts say is largely the point.
“What's so clever about [Rule 202 petitions] is that they never have to sue,” said Hoffman. “They just have to threaten to get the woman in front of a court reporter and force her to answer questions, and it has exactly the chilling effect that they want.”
In a statement, Mitchell reiterated his claim that abortion funds and employers that pay for out-of-state abortions are potentially vulnerable to criminal prosecution and civil liability.
“Conduct taken inside Texas that procures an abortion is a criminal act under the state's pre-Roe abortion ban, even if the abortion occurs out of state,” he said, referring to 19th century laws that were on the books before the Supreme Court ruled in Roe v. Wade in 1973.
The question of whether those laws remain in effect has not yet been fully resolved by the courts. But a federal judge has preliminarily ruled that abortion funds are likely safe from prosecution.
But Mitchell has made his career working the margins of the law, pushing on weak spots until he finds a way in. He successfully circumvented the constitutional protection for abortion with SB 8, and has been a leading voice in getting the U.S. Supreme Court to consider reviving the Comstock Act, a zombie law restricting the mailing of abortion drugs, which hasn't been enforced for over 100 years. He's been advising towns and cities that want to pass so-called “travel bans” that prohibit the use of municipal roads to transport someone leaving the state for an abortion.
“He's been harassing the funds and abortion support networks for years, so it's not a new tactic,” said Elizabeth Myers, a Dallas attorney who represents the funds. “But now that target has expanded to actually include pregnant women, which they've said they would never target. This was always where they were going to go, and now we're here.”
Disclosure: University of Texas at Austin and University of Houston have been financial supporters 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.
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Ted Cruz files bill to protect IVF
by By Eleanor Klibanoff, The Texas Tribune – 2024-05-20 09:45:47
SUMMARY: U.S. Senator Ted Cruz and Senator Katie Britt have introduced the IVF Protection Act to safeguard access to in vitro fertilization (IVF) amid changing anti-abortion laws. The bill aims to make states ineligible for Medicaid funding if they ban IVF. This legislative effort follows an Alabama Supreme Court ruling that classified embryos as protected human life, prompting some IVF providers to pause services. The Texas Supreme Court may also consider a case impacting IVF. Cruz, seeking reelection against Democrat Colin Allred, emphasizes IVF's importance for families. Texas Governor Greg Abbott supports clarifying state laws to protect IVF, while Senate Democrats and House Speaker Mike Johnson diverge on federal versus state jurisdiction.
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U.S. Sen. Ted Cruz of Texas is leading a charge to protect access to in vitro fertilization as conservative states scramble to figure out where IVF fits in the new anti-abortion legal landscape.
On Monday, Cruz and Sen. Katie Britt of Alabama, both conservative, anti-abortion Republicans, filed the IVF Protection Act, which would make states ineligible to receive Medicaid funding if they ban IVF.
This bill comes in response to a ruling from the Alabama Supreme Court earlier this year that said embryos are protected human life when it comes to the state's wrongful death statute. After that ruling, many IVF providers paused those services until the Alabama Legislature passed temporary protections.
The Texas Supreme Court is considering taking up a case that could “upend IVF in Texas,” experts say. A woman has asked the court to overturn previous court rulings that awarded her ex-husband their three frozen embryos in their divorce, arguing that Texas' new abortion laws require embryos to have the same rights as living children.
Almost as soon as the U.S. Supreme Court overturned Roe v. Wade in summer 2022 and allowed states to ban abortion, questions emerged about the legal status of IVF.
In a Wall Street Journal op-ed announcing this legislation, Cruz and Britt said Republicans want to “protect both life and IVF.”
“IVF has given miraculous hope to millions of Americans, and it has given families across the country the gift of children,” Cruz said in a statement. “I'm proud to partner with Sen. Katie Britt to ensure that couples in Texas and across the country have the opportunity to be loving parents, by ensuring that IVF is fully protected at the federal level.”
IVF is “profoundly pro-family,” the pair wrote in the op-ed. “Our bill will honor and support families seeking to welcome a new baby into their lives through IVF.”
Cruz is up for reelection this year, facing Democratic Congressman Colin Allred, who has made Cruz's support for Texas' abortion laws a key part of his campaign. In a statement after the Alabama court ruling, Allred said Cruz had done nothing to protect IVF, and his “dangerous record” on abortion and fetal personhood issues puts Texas families “rights and freedoms at risk.”
Texas Gov. Greg Abbott has expressed his support for IVF, saying he believes the Legislature will clarify state law to protect the procedure.
Meanwhile, in D.C., Senate Democrats have tried unsuccessfully to pass two bills to protect IVF access, and House Speaker Mike Johnson has said he believes this is an issue best left to the states.
Pointing out that 86% of Americans believe IVF should be legal, Cruz and Britt say this should be a bipartisan bill that protects “life, family and personal liberty.”
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Trump says Paxton would make good U.S. attorney general
by By Jasper Scherer, The Texas Tribune – 2024-05-20 08:47:03
SUMMARY: Former President Donald Trump is considering Ken Paxton, Texas' Attorney General, for the role of U.S. Attorney General if re-elected. Trump commended Paxton's abilities and loyalty, highlighting his legal challenge to the 2020 election results and his support during Trump's impeachment defense. Paxton was impeached for bribery allegations but acquitted, with Trump claiming credit for the outcome. Recent polls show Trump leading President Biden in key states. Paxton's legal issues have diminished following the dropping of securities fraud charges, although federal investigations continue. If nominated, Paxton's Senate confirmation faces partisan challenges and opposition from notable Republicans.
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Former President Donald Trump said he would consider tapping Ken Paxton for U.S. attorney general if he wins a second term in the White House, calling his longtime ally “a very talented guy” and praising his tenure as Texas' chief legal officer.
“I would, actually,” Trump said Saturday when asked by a KDFW-TV reporter if he would consider Paxton for the national post. “He's very, very talented. I mean, we have a lot of people that want that one and will be very good at it. But he's a very talented guy.”
Paxton has long been a close ally of Trump, famously waging an unsuccessful legal challenge to Trump's 2020 election loss in four battleground states. He also spoke at the pro-Trump rally that preceded the deadly U.S. Capitol riot in January 2021.
Paxton's loyalty was rewarded with an endorsement from Trump in the 2022 primary, which helped the attorney general fend off three prominent GOP challengers.
Trump also came to Paxton's defense when he was impeached last year for allegedly accepting bribes and abusing the power of his office to help a wealthy friend and campaign donor. After Paxton was acquitted in the Texas Senate, Trump claimed credit, citing his “intervention” on his Truth Social platform, where he denounced the proceedings and threatened political retribution for Republicans who backed the impeachment.
“I fought for him when he had the difficulty and we won,” he told KDFW. “He had some people really after him, and I thought it was really unfair.”
Trump's latest comments, delivered at the National Rifle Association's annual convention in Dallas, come after a series of recent polls have shown the presumptive Republican nominee leading President Joe Biden in a handful of key battleground states.
Paxton has also seen his political prospects rise in recent months, after prosecutors agreed in March to drop three felony counts of securities fraud that had loomed over Paxton for nearly his entire tenure as attorney general. The resolution of the nine-year-old case, along with Paxton's impeachment acquittal in the Senate last fall, has brought him closer than ever to a political career devoid of legal drama.
Still, Paxton's critics say he is far from vindicated. He remains under federal investigation for the same allegations that formed the basis of his impeachment, and he continues to face a whistleblower lawsuit from former deputies who said they were illegally fired for reporting Paxton to law enforcement. A separate lawsuit from the state bar seeks to penalize Paxton for his 2020 election challenge, which relied on discredited claims of election fraud.
If nominated, Paxton would need to be confirmed by the U.S. Senate. The chamber is narrowly divided along party lines, with Democrats holding a 51-49 majority. One of the most prominent Republican members, U.S. Sen. John Cornyn of Texas, has been an outspoken critic of Paxton, while Paxton has openly entertained the idea of challenging Cornyn in 2026.
Paxton is not the only Texan Trump has floated for a high-profile spot in his potential administration. In February, he said Gov. Greg Abbott is “absolutely” on his short list of potential vice presidential candidates. Abbott has since downplayed his interest in the job.
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Texas Tribune
These Texans aren’t taking buyouts despite repeated floods
by By Emily Foxhall, The Texas Tribune – 2024-05-20 05:00:00
SUMMARY: Recent floods in Harris County, Texas, have devastated homes along the San Jacinto River. Tom Madigan, who owns multiple properties, quickly started repairs without knowing the Harris County Flood Control District aims to buy out such flood-prone properties. The region has a longstanding buyout program to remove homes from high-risk flood areas, with about 800 out of 2,400 targeted properties purchased. However, buyouts are voluntary and often insufficient for low-income residents. Despite the program, many choose to stay due to affordability and community ties, while others like Madigan remain skeptical of receiving a fair offer.
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HARRIS COUNTY — After the floodwaters earlier this month just about swallowed two of the six homes that 60-year-old Tom Madigan owns on the San Jacinto River, he didn't think twice about whether to fix them. He hired people to help, and they got to work stripping the walls, pulling up flooring and throwing out water-logged furniture.
What Madigan didn't know: The Harris County Flood Control District wants to buy his properties as part of an effort to get people out of dangerously flood-prone areas.
Back-to-back storms drenched southeast Texas in late April and early May, causing flash flooding and pushing rivers out of their banks and into low-lying neighborhoods. Officials across the region urged people in vulnerable areas to evacuate.
Like Madigan's, some places that were inundated along the San Jacinto in Harris County have flooded repeatedly. And for nearly 30 years, the flood control district has been trying to clear out homes around the river by paying property owners to move, then returning the lots to nature.
The recent floods show why buyout programs can be important. These spots typically flood first and worse. Gov. Greg Abbott reported that hundreds of rescues took place in the state while the floods destroyed homes. A man drowned and a child was swept away into the floods. One Harris County resident described climbing on top of his motor home as the water rose before first responders rescued him.
But the disaster and its aftermath also illustrate why buyouts are complicated to carry out even in Harris County, home to Houston, which has one of the most robust buyout programs in the country. The flood control district has identified roughly 2,400 properties as current buyout candidates around the San Jacinto; the district and county have bought about 800 of them.
Nearly all of the district's buyouts are voluntary. If an owner doesn't want to sell, the district can't force them out.
Buyouts make sense for some people who can't be protected from floods, said Alessandra Jerolleman, director of research for the Center on Environment, Land and Law at Loyola University New Orleans College of Law.
But buyouts might not provide lower-income people enough money to get somewhere safer, she said, and they could lose important support like child care from nearby family or neighbors.
“It's not as though it's a guarantee of reducing risks to that family,” Jerolleman said.
People who live near the river and who have endured repeated floods explained that they've stayed because it's affordable and, most of the time, peaceful. Where else would they be able to buy anything like it? Some said they didn't think the government would offer them what they consider a fair price to sell their land. Some didn't know the buyout program existed.
Madigan started buying homes more than 15 years ago in the unincorporated River Terrace neighborhood because they were cheap. On Tuesday, the Houston firefighter drank a Heineken and grilled hamburgers for his work crew outside his most damaged house, which he rents to his brother. Sodden rugs baked in the sun on the driveway.
Madigan said he might have taken a buyout if it was a reasonable offer — but he doubted it would be. He said he needed to get the properties ready again for his renters. “I can't wait,” he said.
Two blocks away, water had swept through a yellow house Madigan rents to a family with a teenage son. One of the workers fixing the property, 21-year-old Omar Reyna, watched the family throw out pretty much everything they had. Piecing together new laminate flooring with his dad, Reyna kept thinking about a trash bag of Teddy bears and stuffed toys he tossed out for them.
He wondered if the parents had been saving the toys for another kid they might have in the future.
“The faster we get it done, the faster they can come back in here,” Reyna said.
Some people choose to live with the risk of flooding
The San Jacinto is the largest river in the state's most populous county. For years before Harris County's first floodplain maps were drawn up in the mid-1980s, people built homes near its banks. Even today, people can still build in the vast floodplain if the houses are high enough and have enough stormwater detention.
The flood control district tries to buy out homes in pockets of the floodplain that are deepest, said James Wade, manager for the district's property acquisition department. Those are places where engineers can't easily fix flooding problems.
Buyouts are meant to get people out of flood zones before their property floods again, not to help in the immediate aftermath of a disaster. The process is slow: In some cases, it can take 18 months or longer to approve a buyout application, Wade said. The district pays owners the market value or pre-flood value for their house, determined by a third-party appraiser, plus moving expenses and a supplement to help them get into a house out of the floodplain, Wade said.
“It's a very equitable, fair program,” Wade said — but still some people don't want to leave.
Those who stay learn to adapt. They build homes on stilts. They monitor the river level and watch for releases of water from the Lake Conroe dam upstream. Some know intimately the routine of rebuilding: gut the house, clean it, put it back together.
The floor of 49-year-old Sean Vincent's house in the Forest Cove neighborhood in northeast Houston is 15 feet above the ground. Three feet of water flooded it when Hurricane Harvey hit in 2017. This month, the floods reached five feet high on Vincent's property. He cleaned out his waterlogged ground-level shed with help from church members. On Tuesday, he was building new shelves for it.
But most of the time Vincent, who works in railroad traffic control, said he enjoys the space surrounded by tall trees with room for his three kids.
“It's just really not a major part of our life,” Vincent said of the flooding. “Yes, it's inconvenient. Yes, it's now happened to us twice in seven years … It's sort of a trade-off for us. And it is lovely out here.”
“Where are you going to go?”
Then there are those who stay because they don't see anywhere else to go.
Jack St. John, 67, a retired long-haul truck driver, moved to Northshore 43 years ago and has had to clean up after two floods. He worries any time flooding threatens, but the neighborhood's advantages keep him there: He has no water bill because he has a well. His taxes are reasonable. The neighborhood has a fish fry in the spring and a barbecue in the fall.
“You know, when you leave, where are you going to go?” he said. “What's it going to cost to buy into another place?”
Farther northeast, in the Idle Wild and Idle Glen neighborhoods, the floods forced some residents to sleep under tarps. On one largely forested street, boats were turned sideways or flipped upside down. A small building was lodged in the trees. A car was in the ditch.
For several years, Elvia Bethea, 68, has driven from her home in Humble to check on people and pets here, and pick up stray animals. On Tuesday, she and other volunteers gave John Gray, 50, bamboo yard torches to fight the many mosquitoes, plus two trays of chocolate-covered strawberries.
Gray said he couldn't afford to fix up his destroyed house. He earns a living printing labor law posters for businesses. His printers at home were destroyed.
Gray said he had never heard of the buyout program but would consider taking one.
“Who do I call?” Gray asked. “I don't have a clue.”
From the back of a white SUV, Bethea handed some hot dogs to Jose Tabores, 68, who lives on Gray's land in a trailer now filled with mud.
“I'm coming for dinner, remember!” Bethea teased him.
Nearby, 51-year-old Veronika Scheid had been sleeping in a wet tent. The flood washed the shipping crate she lived in down the road and into the trees — along with her and her neighbors' belongings.
At a low point, when Scheid was crying over all she lost, she found a pink-and-white beaded necklace with stitching in the shape of a “V,” like her name. At the end was a charm shaped like a house.
She was grateful the person who owned the land where she stayed hadn't taken a buyout. Otherwise she would have nowhere to go.
“At least we have this,” Scheid said.
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The post These Texans aren't taking buyouts despite repeated floods appeared first on TexasTribune.org.
The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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