Pro-life groups in Texas sue for right to call abortion a crime

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Eight pro-life activists in Texas are suing pro-abortion groups to protect themselves from lawsuits they claim the groups filed to chill their constitutionally protected free speech rights.

“These filings were prompted by aggressive attacks by abortion promoters in Texas: Afiya Center, Texas Equal Access Fund, and Lilith Fund for Reproductive Equity,” said lawyer Erick Kaardal of Thomas More Society, a Chicago-based public-interest law firm specializing in religious freedom issues.

“This is a response to the left, to the ‘cancel culture’ warriors who are using defamation lawsuits to cancel out pro-life speech,” Kaardal told The Epoch Times in an interview.

The First Amendment continues to protect truthful statements, he said.

The pro-abortion groups filed suit in June against Mark Lee Dickson and Right to Life of East Texas, claiming defamation after Dickson referred to abortion in Texas as a crime, a nuanced legal position that pro-life activists agree with.

The Thomas More Society is seeking a declaratory judgment on behalf of the Texas residents who say Texas statutes criminalizing abortion remain state law.

“The federal courts have said there is a right to abortion under the federal Constitution and that enjoins enforcement of the criminal statute in Texas—but it doesn’t mean that, in Texas, abortion isn’t legally defined as a crime,” said Kaardal.

The eight separate lawsuits from pro-life activists were filed last week in the state-level district courts for the Texas counties of Eastland, Franklin, Hockley, Hood, Panola, Rusk, Smith, and Taylor, by the Thomas More Society.

The lawsuits hinge on technical legal arguments.

In Texas, language outlawing abortion is still on the books, undisturbed in the years since the Supreme Court’s decision in Roe v. Wade (1973) made abortion lawful throughout the United States, the Thomas More Society claims.

This point of view was elaborated on by David R. Upham, associate professor and Chair of Politics at the University of Dallas.

He confirmed to The Epoch Times that the Texas legislature “never repealed the statute” outlawing abortion. Although the 5th Circuit Court of Appeals once held that the state statute “had been nullified by implication,” that decision “was probably wrong, and does not reflect any deliberate action by the legislature to repeal the statute.”

“As an attorney, I would be very comfortable in arguing before any tribunal that the Texas abortion statute remains good law and can and should be enforced whenever the federal judiciary steps aside.”

Citing the continued existence of the state law, some pro-life activists have accused the pro-abortion groups of engaging in “criminal” activity.

“Even if there is a court order saying that law can’t be enforced, it doesn’t make it any less a crime, and so when it comes to matters of truthfulness, pro-lifers are on the right side here in Texas, and that the people who have brought these defamation claims are just in error,” Kaardal said.

“It is often assumed that the Supreme Court’s judgment in Roe v. Wade somehow canceled or formally revoked the Texas statutes that outlaw abortion unless the mother’s life is in danger.

“However, the federal judiciary has no power to erase a statute that it declares to be unconstitutional. Roe merely limits the ability of Texas officials to enforce the state’s abortion statutes against those who violate them. The … decision does not, and cannot, veto or repeal the statutes themselves. Texas’s criminal prohibitions on abortion continue to exist as state law until they are repealed by the legislature that enacted them.”

“Therefore, it is entirely truthful for individuals to describe abortion as ‘criminal,’” Kaardal said. “Those who do so cannot be subjected to defamation lawsuits for describing abortion providers and abortion-assistance organizations as ‘criminal’ entities.”

The defendants in the new lawsuits—Afiya Center, Texas Equal Access Fund, and Lilith Fund for Reproductive Equity—could not immediately be reached for comment.

The legal actions come as a small Texas municipality called East Mountain became the 14th local government in the state to attack the legitimacy of the Roe v. Wade ruling by declaring itself a “sanctuary city for the unborn.”

With an official population of 797, the city council vote July 20 in East Mountain was 3 “yes” votes and 2 abstentions, the Christian Post reports.

This article by Matthew Vadum appeared July 22, 2020, in The Epoch Times.