Abortion nonprofits say Texas state Rep. Briscoe Cain defamed them

State Rep. Briscoe Cain, R-Deer Park, sent cease-and-desist letters to eight abortion funds earlier this month, ordering them to “immediately stop paying for abortions performed in Texas or face criminal prosecution.” Miguel Gutierrez Jr./The Texas Tribune

A group of nonprofits that help people access abortions is threatening to sue a Texas lawmaker for defamation after he called them “criminal organizations” in letters he posted to social media.

State Rep. Briscoe Cain, R-Deer Park, sent cease-and-desist letters to eight of these abortion funds earlier this month, ordering them to “immediately stop paying for abortions performed in Texas or face criminal prosecution.”

Cain cites an older state law that says “whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice,” and faces two to five years in prison.

The state representative notes in his letter that the law was never repealed and that the Legislature reaffirmed the statute when it passed its ban on abortions after about six weeks of pregnancy.

Texas’ new abortion restriction, passed as Senate Bill 8, specifically notes that “the legislature finds that the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade.”

“It appears that you are unaware that [the statute] continues to exist as the law of Texas,” Cain said. “And you likewise appear unaware that your organization is committing criminal acts that are exposing everyone involved in your organization—including your employees, volunteers, and donors—to criminal prosecution and imprisonment.”

Cain also said he intends to introduce legislation to allow district attorneys to prosecute abortion-related crimes outside their home jurisdiction “when the local district attorney fails or refuses to do so.”

Texas’ original abortion statutes do remain on the books but were found to be unconstitutional by the U.S. Supreme Court in Roe v. Wade in 1973. The next year, Texas Attorney General John L. Hill affirmed in a legal opinion that “there presently are no effective statues of the State of Texas against abortion.”

“Laws that are repugnant to the Constitution are void and of no effect, and do not create crimes or criminal liability,” Jennifer Ecklund, a lawyer for the abortion funds, wrote in a rebuttal to Cain. “You are making statements that are legally indefensible and factually false. Your unfounded criminal accusations are also defamatory.”

In the letter, Ecklund called for Cain to issue a public statement retracting his original claims and making it clear that he does not believe that the abortion funds are committing any crimes. If he does not, the letter said, the organizations will explore all legal options, including seeking a court order and compensation for the damages and attorney’s fees incurred by the funds.

Ecklund also asked Cain to confirm whether he sent the cease-and-desist letters as a state representative, as an attorney, or as an individual. The letters were sent on his official legislative letterhead.

In a response sent to Ecklund on Tuesday, Cain confirmed that he was acting in his role as a state legislator when he sent the letters and indicated he did not intend to retract the claims. He also added that Ecklund was committing legal malpractice by advising her clients that they were not in violation of state law.

“If you and your clients want to adhere to your delusional belief that article 4512.2 no longer exists as the law of Texas, then we welcome the opportunity to have the judiciary set you straight,” Cain said.

Ecklund and her firm, Thompson Coburn, are representing the abortion funds in an ongoing state lawsuit challenging Texas’ ban on abortions after about six weeks of pregnancy. A state judge found the law to be unconstitutional, though he declined to enjoin it from being enforced.

Earlier this month, two of the abortion funds filed federal lawsuits against two anti-abortion groups, a move legal experts believe may have a strong chance of blocking the law.

Denise Rodriguez, communications director for the Texas Equal Access Fund, said the abortion funds will not be intimidated by Cain’s letter. But she’s not surprised that abortion funds have moved into the crosshairs recently due to their work helping people circumvent the new law.

“It seems like their strategy is to try to intimidate donors of abortion funds and try to basically starve abortion funds for resources that can help people get out of state or get abortions,” she said.

Meanwhile, the U.S. Supreme Court is expected to rule this summer on a Mississippi abortion case that has the potential to overturn Roe v. Wade. Texas has a trigger law that would immediately ban abortion in line with the Supreme Court’s ruling. Cain’s letter is an indication that he, and possibly other legislators, will take action to ensure those laws are swiftly and thoroughly enforced.

“The state of Texas will ensure that you and your organization’s employees, volunteers, and donors are held accountable for every abortion that you illegally assisted,” Cain wrote in the letter. “Conduct yourself accordingly.”

The Texas Tribune

---

CONTRIBUTOR

Eleanor Klibanoff

Eleanor Klibanoff is the women's health reporter at The Texas Tribune. She was previously with the Kentucky Center for Investigative Reporting, where she covered sexual assault, domestic violence, and policing, among other things.