Why Texas abortion funds are on pause after the end of Roe v. Wade

Performing an abortion is illegal in almost all cases in Texas – but abortion funds are grappling with another legal question: Is it illegal to help pay for one, even in other states where the procedure remains legal and available?

A complicated legal landscape has led these funds, which help women pay for an abortion or the associated costs, to stop providing direct assistance, but these organizations say they’re not going anywhere. Some employers in Texas and other states with stringent abortion laws also have taken steps to expand abortion benefits in wake of the Supreme Court ruling.

Before the state banned abortion, Senate Bill 8 restrictions banning almost all abortions after six weeks led many Texans to travel to other states to get abortions, which strained family finances for some.

What is an abortion fund?

Abortion funds are independent organizations that provide financial assistance to people seeking abortions. Some organizations pay for the procedure itself, while others pay for related costs like transportation, lodging and child care. These funds are usually focused on providing aid for a particular state or area and some network to support each other.

Why have these funds paused work in Texas?

Many Texas-based abortion funds have paused their funding operations since the Supreme Court overturned Roe vs. Wade, fearing legal risks.

Jennifer Ecklund, a lawyer at Thompson Coburn who represents several Texas abortion funds, said there is a lack of clarity around state laws related to abortion.

The confusion centers around a 1925 statute that applies penalties to anyone who “furnishes the means” for an abortion.

Texas Attorney General Ken Paxton has argued that the pre-Roe law from 1925 is currently in effect. The Texas Supreme Court ruled on July 1 that the pre-Roe law could be enforced.

Ecklund said it’s unclear how Paxton or district attorneys would interpret this statute.

“That’s essentially the legal landscape that has created the uncertainty, which has put funds in the position of taking time to rethink their operations in a way that won’t subject them, or their staff, or their volunteers or their donors to any risk,” Ecklund said.

A ban under the state’s trigger law that makes it a felony to “perform, induce, or attempt” an abortion will take effect on Aug. 25.

But abortion funds are more concerned with the 1925 statute, and the question of if this statute is still enforceable even when the trigger ban takes effect.

Paxton released updated guidance on abortion law in Texas on July 27, but it doesn’t mention the legality of providing financial assistance to someone having an abortion.

Ecklund said she believes it is unconstitutional for statutes to criminalize providing information about abortion or financial assistance.

“There are a lot of defenses that funds could raise if they were prosecuted. But the reality is that they shouldn’t have to be prosecuted under an unconstitutional statute,” she said.

Some Texas lawmakers have said they to introduce legislation to make paying for an abortion illegal. Members of the conservative Texas Freedom Caucus sent a letter to Dallas law firm Sidley Austin alleging that the company was paying for employees to travel out-of-state for abortions.

In the letter, the representatives said they plan to introduce legislation that would allow any citizen to sue someone suspected of paying for an abortion.

State Rep. Briscoe Cain, R-Deer Park, sent a cease-and-desist letter to abortion funds in March, claiming their actions were illegal based on the 1925 law.

What are abortion funds doing now?

Many of the funds in Texas are staying active doing advocacy work for reproductive health care.

Texas Equal Access Fund, which serves North Texas, has paused direct funding of abortions since the Supreme Court’s decision.

“We have expanded our advocacy work to fight for access in Texas again. We are organizing with partners on the local level,” Communications Director Denise Rodriguez said in a statement.

She said Denton City Council’s resolution to ask police to deprioritize prosecuting abortions was a recent victory for the organization.

Lilith Fund, the oldest abortion fund in the Texas, served clients in the central and south regions of the state.

Neesha Davè, deputy director of the Lilith Fund, said the day the Supreme Court overturned Roe vs. Wade – a case that originated in Dallas County – was the worst day for the organization in 21 years.

Though the organization is not providing direct funding, Davè said the organization is working on launching new services to continue on with their mission, while complying with existing laws.

She said she believes the organization will be able to provide direct funding again someday.

“For right now, even though we believe these laws are invalid and unjust, we are forced to comply with the law, to protect our staff and our board of directors, who are majority women of color,” Davè said.

What about funding from other states?

While many abortion funds have a local focus, some organizations, like the National Abortion Federation, provide aid nationwide.

Davè said many abortion clinics have their own assistance programs to help patients cover the cost of an abortion.

One organization helping Texans travel for abortions is the Midwest Access Coalition. Alison Dreith, director of strategic partnerships for the organization, said that her organization is seeing a sharp increase in clients traveling from Texas to the Midwest for abortions.

The closest abortion provider to North Texas is in Wichita, Kan., over 300 miles from Dallas.

“I had someone from Texas last week go all the way to Michigan, because that was where they were born, and they felt more comfortable going to a state they were familiar with and closer to home,” Dreith said. “It’s just really wild where people are going and how far they’re going to reach care.”

The Midwest Access Coalition does not provide direct funding for abortions, but provides assistance for related expenses like travel and child care.

Dreith said the Midwest Access Coalition started providing some support to Texans traveling for abortions after Senate Bill 8 passed last year. In 2021, the organization assisted over 800 clients.

Dreith said by July 14 this year, the organization had already served 800 clients.

The influx of women seeking abortions from state’s where clinics have closed have created long wait times, Dreith said. Appointments that once could have been scheduled three days in advance now take three weeks.

At least eight other states have banned abortion in almost all cases since Roe’s overturn, most recently Indiana.

“While those aren’t all Texas clients, it shows you the stark increase from how those abortion appointments are being pushed out, because now Texas is dark,” Dreith said. “Now Oklahoma is dark.”

New Mexico is another common destination for Texans traveling for abortions. Whole Woman’s Health, which operated four clinics in Texas, announced it would close its Texas locations, and is raising money to open a new facility in New Mexico.

Joan Lamunyon Sanford, executive director of the New Mexico Religious Coalition for Reproductive Choice, said her organization is seeing more clients looking for financial assistance.

“There’s still a lot of people who can’t get here, either because they assume abortion is illegal all across the country, or because they don’t know how to find us,” she said. “They don’t know that you can travel to New Mexico.”

Lamunyon Sanford said the coalition mainly funds residents of other states traveling to New Mexico. The state has a population of just more than 2 million, and is one of 16 states where Medicaid covers abortion, defraying the cost of abortions for many.

Before the Supreme Court overturned Roe, around three-fourths of the coalition’s clients were from Texas and Oklahoma, Lamunyon Sanford said.

The Supreme Court’s decision led to more donations and volunteers for the coalition.

“This is going to be a marathon,” she said. “Ultimately, we will have something in place that is better and stronger than Roe ever was. But to get there, we need people’s ongoing support.”