Recently, Jonathan Mitchell, the former Texas Solicitor General, filed a taxpayer lawsuit, Zimmerman v. City of Austin, seeking to block Austin from implementing a program designed to assist low-income women seeking abortions. The program would provide grants to organizations that would help women pay for some of the incidental costs they incur in obtaining abortions, such as transportation to and from the abortion provider, lodging (if an overnight stay was required), childcare, and other related out-of-pocket expenses. The grant program would not pay for any of the costs of the abortion itself. Mitchell’s lawsuit has attracted favorable comment from some quarters, but, for the reasons set forth in this article, it does not deserve the support of the pro-life community.

In evaluating Mitchell’s lawsuit, it is critical to emphasize that it is based on the theory that Austin’s grant program is criminal. The program, according to Mitchell, violates two criminal statutes, a pre-Roe statute, art. 1192 of the Texas Penal Code (subsequently transferred to the Texas Revised Civil Statutes), that prohibited anyone from “furnishing the means for procuring an abortion knowing the purpose intended,” and § 7.02(a)(2) of the Texas Penal Code. The former statute was declared unconstitutional, along with the other pre-Roe abortion statutes (including the substantive offense of performing an abortion) in Roe v. Wade (1973). Under the latter statute, a person is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense, he . . . encourages, . . . aids, or attempts to aid the other person to commit the offense.”

The fundamental flaw in Mitchell’s lawsuit is that the underlying “offense,” to which both the pre-Roe statute and § 7.02(a)(2) purportedly apply—i.e., abortion—is not enforceable because it has been declared unconstitutional. Mitchell’s lawsuit essentially claims that one who assists another to engage in conduct that the Supreme Court has determined to be constitutionally protected—abortion—is guilty of a criminal offense and may be prosecuted for that offense, even though the person who actually commits the offense may not be prosecuted. In other words, an accomplice may be prosecuted for assisting a principal in committing the “offense” of abortion, though the principal himself may not be prosecuted. That, to say the least, is counterintuitive.

Under Mitchell’s theory, anyone who assists a physician in performing an abortion is guilty of a crime (either the pre-Roe accomplice statute or § 7.02(a)(2) of the Penal Code), even though the physician himself cannot be prosecuted under the pre-Roe statute for performing the abortion.  So, too, a person who drives a woman to an abortion facility, or lends or gives her money to obtain an abortion has committed a crime, even though the physician who performs the abortion could not be prosecuted. Does this make any sense? How can assisting someone to engage in constitutionally protected conduct be guilty of a criminal offense? Of course, if the assistance itself is criminal, independent of the purpose for which it is being offered, that would be a different matter. So, for example, no one could steal a car in order to drive a woman to an abortion facility, or hold up a liquor store to raise funds for an abortion. But Mitchell’s lawsuit does not claim (nor could it claim) that providing assistance in transportation, lodging, childcare, and other services is criminal, apart from the reason for which the assistance has been provided.

The applicable case law undermines the foundation of Mitchell’s lawsuit. Prior to the Supreme Court’s decision in Stenberg v. Carhart (2000), which declared unconstitutional Nebraska’s statute banning partial-birth abortions, Illinois, Louisiana, and Wisconsin (among many other states) enacted statutes similar to Nebraska’s banning partial-birth abortions. The statutes imposed criminal penalties and authorized private civil remedies for their violation. Both the Fifth Circuit and the Seventh Circuit held that the constitutionality of the provisions authorizing civil remedies could not be considered in a case brought by abortion providers against state and local officials challenging the statutes because those officials had no power to enforce those provisions. They could decide only the constitutionality of the criminal provisions. Both courts, however, made it clear that the invalidation of the criminal provisions of those statutes would preclude their enforcement through civil actions.

“[I]t is important to keep in mind,” the Fifth Circuit noted, “that anyone exposed to actual liability under this statute [prohibiting partial-birth abortions] has immediate redress—that is to say, a defendant sued by a private party under [the Act] can immediately and forthwith challenge the constitutionality of the statute.” Okpalobi v. Foster, 244 F.3d 405, 429 n. 40 (5th Cir. 2001) (en banc). In a similar vein, the Seventh Circuit said that, given the Supreme Court’s Stenberg decision, “any private suit based on these state laws would lack a legal foundation, because Stenberg invalidated the definitional clauses on which both states’ private-action laws depend.” Hope Clinic for Women v. Ryan, 249 F.3d 603, 606 (7th Cir. 2000) (en banc).

It is apparent from the foregoing analysis that a private right of action based upon violation of a criminal statute may not be brought where the criminal statute itself is unconstitutional and unenforceable. But that is exactly what Mitchell’s lawsuit attempts to do. None of this means that there is a right to a publicly funded abortion or to public assistance in obtaining an abortion. There is no such right, as the Supreme Court held in Harris v. McRae (1980) and Williams v. Zbaraz (1980). Nor does this mean that the State may not prohibit, by appropriate legislation, the kind of indirect assistance the City of Austin is providing to women seeking abortions. What it does mean is that the pre-Roe statute criminalizing abortion cannot provide the legal basis for a civil cause of action (in this case, a taxpayer action) to stop Austin from doing what it is doing.   Unless and until the State of Texas prohibits what the City of Austin has undertaken to do, the grant program authorized by the City of Austin is entirely legal.