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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
FUND CHOICE )
TEXAS, )
Plaintiff )
v. ) No. 25-cv-1227
SUSAN DESKI )
and )
ASHLEY )
MAXWELL. )
Defendants )
COMPLAINT
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3. Plaintiff Fund Choice Texas is a not-for-profit reproductive-freedom advocacy group; its mission is to fund or support Texas citizens who seek to travel to other states to obtain abortions. It depends on private donations to operate.
4. Defendant Susan Deski (“Deski”) is the elected District Attorney for Travis County, Texas, which includes Austin, the state capitol. Deski is the chief prosecutor for the County, holding sole power to ensure that state laws are enforced in the County.
5. Ashley Maxwell is a private individual, a citizen of Texas, and an anti-abortion activist.
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10. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org. (2022) eliminated the federal constitutional right to obtain an abortion. Dobbs overruled the Court’s decision in Roe v. Wade (1973) and its progeny.
11. Article 1191 of the Texas Criminal Code, enacted prior to the Court’s decision in Roe, makes it a crime to perform or procure an abortion.
12. Article 1192 of the Texas Criminal Code, enacted prior to the Court’s decision in Roe, makes it a crime to “furnish the means for procuring an abortion knowing the person intended to procure an abortion.” The “means” in Art. 1192 includes providing transportation, housing, information, money, a thing of value, and any other support enabling the procurement of an abortion.
13. Article 1193 of the Texas Criminal Code, enacted prior to the Court’s decision in Roe, provides that the prohibition of 1192 shall apply to efforts to furnish the means for procuring abortions inside and outside Texas.
13. When the Court decided Roe in 1973, Articles 1191, 1192, and 1193 ceased to be enforceable, although they remained on the books as validly enacted state laws.
14. In 2005, Texas enacted Article 1280, known as the “trigger ban.” It provides that “At such time that the Supreme Court overrules Roe v. Wade and its progeny and eliminates constitutional protection for abortion, all prior laws regulating abortion, not having been repealed by the Texas Legislature, shall return to force and effect and become enforceable by prosecutors in this state 90 days after the Court issues its decision.”
15. Per Article 1280, Articles 1191, 1192, and 1193 are in effect and enforceable following the Supreme Court decision in Dobbs.
16. In 2021, Texas enacted S.B. 8, prohibiting abortions after detection of a fetal heartbeat (which usually occurs at 4-6 of the pregnancy). S.B. 8 prohibits government officials from enforcing that ban. It authorizes “any person” to commence a civil action against anyone who in any way “aids-or-abets” an abortion, inside or outside of Texas. A plaintiff bringing an action under S.B. 8 can recover a minimum of $ 10,000 in statutory damages for any abortion and attorney’s fees.
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21. Fund Choice Texas’s organizational mission entails providing financial, logistical, informational, emotional, and travel assistance to pregnant Texans seeking lawful reproductive services. This includes identifying and providing public information to pregnant Texans on out-of-state reproductive services and opportunities for Texans in need. It includes funding and facilitating travel and lodging for pregnant Texans who seek abortions outside the state, where the procedure is lawful.
22. Were Fund Choice Texas to provide the assistance described in ¶ 21, it would constitute furnishing the means for procuring an abortion outside of Texas, in violation of Articles 1191, 1192, and 1193. It would subject Fund Choice Texas to criminal prosecution and punishment in a Texas state criminal proceeding initiated by Deski.
23. Not wanting to risk criminal prosecution and punishment, Fund Choice Texas has ceased providing services, thereby failing to perform its core organizational mission.
24. Fund Texas Choice has received communications from donors saying that they will not donate because of the potential for criminal and civil liability.
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31. Fund Choice Texas’s organizational mission entails providing financial, logistical, informational, emotional, and travel assistance to pregnant Texans seeking lawful reproductive services. This includes identifying and providing public information to pregnant Texans on out-of-state reproductive services and opportunities for Texans in need. It includes funding and facilitating travel and lodging for pregnant Texans who seek abortions outside the state, where the procedure is lawful.
32. Detection of a fetal heartbeat occurs between four and six weeks of a pregnancy.
33. Because it takes time to discover a pregnancy and to learn about and arrange out-of-state travel, most abortions occur after six weeks of a pregnancy.
34. Were Fund Choice Texas to provide the assistance described in ¶¶ 31-33, it would constitute aiding-and-abetting a post-heartbeat abortion, in violation of S.B. 8. It would subject Fund Choice Texas to a civil action and civil liability in Texas state court initiated by “any person” who chooses to bring it.
35. Not wanting to risk civil litigation and substantial liability of $ 10,000 or more per client, Fund Choice Texas has ceased providing services, thereby failing to perform its core organizational mission.
36. Fund Texas Choice has received communications from donors saying that they will not donate because of the potential for criminal and civil liability.
37. In multiple public statements, Maxwell has stated her intent to pursue civil litigation to enforce S.B. 8 against any persons or entities who provide assistance with out-of-state abortions in violation of state law.
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Count I: (v. Susan Deski): Violation of First Amendment
42. Enforcement of Articles 1191, 1192, and 1193 by Deski against Fund Choice Texas’ activities supporting out-of-state abortions would violate the First Amendment right to freedom of speech, which protects an organization’s right to collect and spend money for lawful purposes, such as supporting lawful out-of-state abortions.
Count II: (v. Susan Deski): Violation of Constitutional Right to Travel
43. Enforcement of Articles 1191, 1192, and 1193 by Deski against Fund Choice Texas’ activities supporting out-of-state abortions would violate the constitutional right to travel, which protects traveling outside of state to obtain a lawful abortion and to fund such travel.
Count III: (v. Ashley Maxwell): Violation of First Amendment
57. Enforcement of S.B. 8 by Maxwell against Fund Choice Texas’ activities supporting out-of-state abortions would violate the First Amendment right to freedom of speech, which protects an organization’s right to collect and spend money for lawful purposes, such as supporting lawful out-of-state abortions.
Count IV: (v. Ashley Maxwell): Violation of Constitutional Right to Travel
60. Enforcement of S.B. 8 by Maxwell against Fund Choice Texas’ activities supporting out-of-state abortions would violate the constitutional right to travel, which protects traveling outside of state to obtain a lawful abortion and to fund such travel.
Prayer for Relief: Plaintiff requests the following remedies:
1. Declare that enforcement of Articles 1191, 1192, and 1193 against Fund Texas Choice for its activities would violate the First Amendment and the constitutional Right to Travel.
2. Declare that enforcement of S.B. 8 against Fund Texas Choice for its activities would violate the First Amendment and the constitutional Right to Travel.
3. Enjoin Deski from threatening, initiating, or pursuing criminal charges against Fund Texas Choice for its constitutionally protected activities.
4. Enjoin Maxwell from threatening, initiating, or pursuing a civil action against Fund Texas Choice for its constitutionally protected activities.
Deski and Maxwell file a motion to sever, arguing they are improperly joined.
For the court, resolve the motion. Cite to particular paragraphs in the Complaint when discussing information in that document.
