AUSTIN — Representatives from Texas abortion funds, including El Paso-based West Fund, asked a federal judge Tuesday whether they can resume providing funds to pregnant Texans who seek abortions out-of-state without risk of criminal or civil penalties.

During the first hearing in a class-action lawsuit brought against Texas Attorney General Ken Paxton and other county and district attorneys, plaintiffs argued that existing Texas laws violate the rights of abortion funds and providers to free speech, free association and interstate travel by limiting their ability to provide financial support to people seeking abortions out-of-state.

Although the abortion funds in the case – including Fund Texas Choice, Jane’s Due Process and Lilith Fund – have the mission of assisting Texans in seeking abortions, they have halted that work following the overturning of Roe v. Wade out of fear of jail time and costly civil penalties.

“We’ve all been forced to pause our funding, the key word is forced,” said Amanda Beatriz Williams, executive director of Lilith Fund.

U.S. District Judge Robert Pitman did not indicate during the hearing when he would make a decision in the lawsuit. He said he would ask attorneys to file briefs after the hearing concludes.

Paxton was notably absent from the hearing, after running away from a person trying to serve him a subpoena to attend. In a statement posted to Twitter Tuesday, he described the process server outside his home as “suspicious and erratic,” and said he avoided him out of concern for his safety.

Pitman discussed Paxton’s absence at several points throughout the hearing, including jokingly mocking Paxton’s attorneys when they objected to speculation over the meaning of Paxton’s prior statements.

Pitman on Monday granted Paxton’s motion to quash the subpoena to secure his testimony, an action the plaintiffs have asked the judge to reconsider. He said he would take the request under advisement.

Williams expressed frustration over the “glaringly obvious absence” of the Texas attorney general in the courtroom. A key concern underpinning the lawsuit, she said, was the desire for clarity on whether Texas abortion funds and providers will face criminal or civil prosecution if they assist Texans in accessing abortions out of state.

Pitman echoed this question to Paxton’s attorneys in his closing remarks: “Isn’t all they’re asking for clear notice?” he asked.

Texas has several abortion laws on the books, including the trigger law which bans all abortions with limited exceptions in cases of medical emergency; Senate Bill 8, which empowers individuals to file a civil suit against anyone who “aids and abets” the provision of an abortion; and pre-Roe statutes dating back to 1857 that Paxton emphasized are “still Texas law” following the overturning of Roe v. Wade.

The number of Texans traveling out of state to receive abortions has increased dramatically as abortion access within the state has evaporated. An Albuquerque clinic cited that 75% of abortions provided were for Texans in recent months.

Whether someone can travel out of state to receive an abortion depends on their financial ability, ability to access child care or take time off work, and immigration status, among other factors. These are key areas where abortion funds can offer help, according to plaintiffs in the lawsuit.

Among the witnesses testifying during the hearing, many said how confusing they found it to interpret the way that Texas laws apply to abortion funds.

Paxton’s attorneys emphasized that the Texas attorney general does not have criminal prosecutorial authority, only civil, and questioned the witnesses as to whether they had faced the threat of prosecution directly from a county or district attorney in the state. None of the witnesses said they had.

Paxton’s attorneys argued that existing law is clearcut, and declined to give an interview following the hearing, saying they were not authorized to do so.

Paxton has been a staunch opponent to abortion, celebrating the June 24 overturning of Roe v. Wade by declaring the date a state holiday. In July, he sued the Biden administration to further restrict abortion access during medical emergencies, the lone condition where abortions remain legal in Texas.

At one heated moment during Tuesday’s hearing, one of Paxton’s attorneys asked plaintiff Dr. Ghazaleh Moayedi, an abortion provider, to calculate how many children of color had not been born because of her. “I reject the premise of your question,” she responded.

Like other abortion funds throughout the state, El Paso-based West Fund halted efforts to provide funds to people seeking abortions after the overturning of Roe v. Wade in June.

West Fund helpline coordinator Alexis described a tempered optimism toward the lawsuit, and said the group decided to participate because “we’re doomed if we do and we’re doomed if we don’t.” (West Fund staff withhold their last names from publication and social media due to safety concerns.) 

Alexis anticipates further challenges even if the lawsuit is successful, and described legal battles over providing abortion support as dehumanizing and frustrating.

“We do deserve clarity,” Alexis said. “We do deserve to know what could potentially happen versus, ‘Well, who knows?’”