Criminal defense attorneys decry Texas AG's open threats to prosecute
Ken Paxton published a letter on Thursday to prevent the judge's order from going into effect
Following a judge’s order to allow an abortion for a Texas woman, the state’s Attorney General Ken Paxton tweeted a letter and issued a statement defying the court’s decision by threatening prosecution of anyone involved in providing that care.
Paxton published a letter on a government website and on X, formerly known as Twitter, that enumerated his reasons for why he thinks that the hospitals in question shouldn’t be permitted to follow through with the abortion.
The Center for Reproductive Rights filed a lawsuit on behalf of Kate Cox, a 31-year-old woman who learned last week that her fetus had a fatal chromosomal condition, as well as other health issues, including a spinal abnormality. On Thursday, Travis County judge Maya Guerra Gamble issued a temporary restraining order to permit an abortion.
Several organizations, including the National Association of Criminal Defense Attorneys, decried the AG's action. Missy Owen, co-chair of NACDL's Criminalization of Reproductive Health Taskforce, spoke to me about what was problematic about Paxton’s behavior and its implications for the future. She felt that the only appropriate step would be to file an appeal instead of grandstanding on social media.
“There used to be a time when the law operated like the law,” Owen said. “To have an ag who is not taking the action that is legally available to him and just disregarding the process of law is unbelievable.”
The threat of criminal prosecution to enforce abortion laws is something that many legal scholars have warned about. The ACLU and other groups have sought to advance privacy laws to prevent prosecutions.
Paxton isn’t the only state attorney general who has threatened prosecutions in abortion cases. Alabama Attorney General Steve Marshall contended in a legal brief he filed in August that he could prosecute women and others involved who went out of state to get abortions.
“Anytime you have a situation where there is this vast over-criminalization that leaves broad discretion to who will and won’t prosecute, there's concern that district attorneys may overstep,” Owen said. “They take egregious acts in an elected district where their voters support the ultimate cause.”
One of the questions I asked was if prosecutors or attorney generals could be punished or reprimanded by judicial oversight boards that govern the conduct and ethics of people responsible for prosecuting cases.
“There are ethics guidelines that have to be followed, and prosecutors who don't follow how they're bound ethically will face those consequences and could face punishment,” Owen said. “But all of these things take time. The one thing Cox does not have is a lot of time.”