Judge reinstates subpoenas, orders Texas AG Ken Paxton to testify in abortion lawsuit

A federal judge has ordered Texas state Attorney General Ken Paxton to testify in a lawsuit brought by eight nonprofits that hope to resume helping pregnant women in the Lone Star State schedule and pay for out-of-state abortions.

U.S. District Judge Robert Pitman reinstated two subpoenas compelling Paxton's testimony, saying in a Tuesday evening order that only Paxton can clarify what he meant when he threatened legal reprisals against those who facilitate abortions in states where the procedure remains legal.

The judge gave both sides until Oct. 11 to agree on whether Paxton should testify in the courtroom or by deposition.

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Pitman had originally quashed the subpoenas shortly before a Sept. 27 hearing on the lawsuit in his Austin courtroom.

But the judge said Tuesday that he made that decision based on incomplete and misleading statements by Paxton and lawyers in the attorney general's office — including claims that the subpoenas were served on "the literal eve of trial" when in fact lawyers for the abortion groups tried for at least four days to confirm that Paxton was available to testify.

Paxton also questioned whether he had been properly served with the subpoenas — not mentioning, Pitman said, that his agency's lawyers repeatedly rebuffed requests to accept the subpoenas on Paxton's behalf or set up another form of service.

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In court documents challenging the subpoenas, the attorney general's office also made no mention of Paxton's apparent attempt to evade a process server who appeared at his McKinney home on the day before trial in an attempt to hand over the subpoenas.

According to an affidavit from the process server, Paxton ran back into the house when confronted in his driveway. A short time later, his wife — state Sen. Angela Paxton — walked to a vehicle and started it, leaving the rear passenger door open. Ken Paxton ran into the vehicle and his wife drove away, the process server said, adding that he left the subpoenas in the driveway.

Paxton, a Republican seeking a third term as state government's top lawyer, later claimed that the process server, who had previously knocked on his door and presented his card to Angela Paxton, was acting erratically and that he feared for his safety.

The abortion groups argue that Paxton's threatening statements — made in press releases, on Twitter and in interviews on right-wing media — are restricting their ability to arrange and pay for out-of-state abortions and limiting their First Amendment right to speak about and fund abortion care.

Joined in the lawsuit by a Dallas abortion doctor who wants to resume working in out-of-state abortion clinics, the groups are seeking an injunction protecting them from being punished for resuming their activities.

In the days after the U.S. Supreme Court ruled June 24 that there is no constitutional right to abortion, Paxton issued statements proclaiming abortion illegal under existing Texas law.

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Paxton also vowed to vigorously pursue civil penalties of at least $100,000 and assist in the criminal prosecution of those who perform or induce an abortion, noting that his office considered abortion illegal for Texans whether the procedure occurred in “Denver or Dallas, in Las Cruces or Lamesa."

In the face of the threats, the abortion groups halted services and the Dallas doctor stopped traveling to abortion clinics outside Texas, representatives testified in the Sept. 27 hearing before Pitman.

"Several witnesses stated that they understood these statements to cover out-of-state abortion care but could not be sure because the statements were unclear," Pitman said.

In court filings, lawyers for Paxton suggested that Paxton does not consider out-of-state abortions to be illegal under Texas law. But the same filings argue that Paxton is required under state law to pursue civil penalties against violators, Pitman noted, placing the abortion groups at a disadvantage.

"Given this contradiction, Paxton alone can testify as to which represents his position on out-of-state abortion care," Pitman wrote in his order.

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"If their fears are unwarranted, then that will become clear during the course of his testimony. But the Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purposes of deterrence and as hypothetical for the purposes of judicial review," Pitman added.

The judge also rejected arguments that Paxton, as a high-ranking official, should not be compelled to testify because of significant time constraints.

"It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements," Pitman wrote. "To the extent Paxton is burdened by his testimony, it is because both he and his office have declined to take a clear stance on the legality of out-of-state abortions while issuing statements suggesting they are illegal."

This article originally appeared on USA TODAY: Federal judge orders Texas AG Ken Paxton to testify in abortion case