Several Texas abortion funds - which are charities that help people who can't afford to get an abortion pay for their travel, lodging and medical bills - paused disbursements on June 24, 2022, after the Supreme Court ruled that Americans have no constitutional right to the procedure.
The Lilith, Equal Access, Frontera and other funds said they were taking this step to assess the legal consequences of the court's ruling in Texas, which already had some of the nation's strictest abortion laws. Abortion funds in some other states, including Oklahoma, were also reportedly halting their work.
Some funds active in Texas made this decision based on concerns that their financial assistance to women seeking abortions may now be illegal in that state, as well as fears that their donors could also be sued for violating Texas law.
But as an expert on reproductive rights and First Amendment law who has argued before the Supreme Court, I believe that donating to abortion funds - even in places where helping people get abortions is illegal - is protected by the U.S. Constitution.
Precedent in Schaumburg, Illinois
The Supreme Court has ruled on several occasions that fundraising, whether it's by charitable organizations or political candidates, is a form of speech protected by the First Amendment.
The court handed down the first relevant ruling in 1980, with its Schaumburg v. Citizens for a Better Environment decision. The court struck down an Illinois city ordinance that had prohibited charitable organizations from soliciting contributions unless 75% or more of their revenue was used directly for charitable purposes, rather than for salaries, administration and overhead costs.
The city of Schaumburg had defended that ordinance by contending it regulated conduct involving commercial transactions and was necessary to prevent fundraising for fraudulent causes. The Supreme Court rejected this characterization, asserting that fundraising is a form of protected speech because it is "intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues."
The court further noted that without the right to seek and receive donations, "the flow of information and advocacy would likely cease."
Campaign contributions as free speech
Several campaign finance rulings have reinforced the Schaumberg ruling.
The best-known among them is Citizen's United v. Federal Election Commission. Two other key rulings are Buckley v. Valeo, which preceded the Schaumberg case, and McCutcheon v. Federal Election Commission. All three established that contributions to political candidates, and spending by those candidates, is a form of speech protected by the First Amendment.
In the eyes of the law, seeking donations and making contributions are two sides of the same coin. The Supreme Court has said that both are important ways to show support for political preferences, advance ideas and advocate for policy changes.
The First Amendment right to solicit or give funds is not limited to charitable organizations or candidates. Simply panhandling on the street, the most basic form of soliciting funds, is entitled to First Amendment protection, according to several lower federal courts.
The right to donate - to controversial causes
The Supreme Court has also held that the freedom of association principle embodied in the First Amendment protects the right to support a cause by making donations or paying dues.
Based on the freedom of association, which includes the right to join together with others for social or political purposes, the court has been very protective of the right of donors to remain anonymous. That has especially been the case for donors who support controversial causes and when revealing their identity might subject them to harassment, threats, public hostility or other forms of reprisal.
In 1958, the Supreme Court ruled in NAACP v. Alabama that the First Amendment barred Alabama from forcing the NAACP to disclose the names of its members or donors who resided in the state. The court pragmatically recognized that compelling disclosure of supporters of a civil rights group in Alabama in the 1950s could endanger the donors.
Protecting both sides
This First Amendment principle of protecting the speech and the rights of donors to fund charitable causes guards both sides of the political spectrum.
In July 2021, for example, the Supreme Court decided a case brought by two organizations considered to be conservative: the Americans for Prosperity Foundation and the Thomas More Law Center. The two organizations challenged a California law that required them to disclose the names of their donors who gave more than $5,000.
California tried to justify this law as necessary to prevent fraud by registered charities - the same "preventing fraud" rationale that Schaumburg had unsuccessfully asserted as the reason it needed to restrict charitable solicitation.
Based on this body of law, the First Amendment protects the right of abortion funds to seek contributions and to make contributions to individuals in Texas and other states where abortion is illegal to support their activities. The First Amendment also protects the right of people to make donations to abortion funds.
Restricting financial help for abortions in Texas
A 2021 Texas law known as Senate Bill 8 prohibits "aiding and abetting" an abortion after six weeks into pregnancy. The measure specifically mentions providing financial assistance as a form of aiding and abetting.
The law authorizes any person in the world to bring a civil damages lawsuit against anyone who "aids and abets" an abortion, and to recover attorneys' fees in addition to at least $10,000.
One reason why abortion funds might be leery right now is that Texas law permits someone to seek a court order to force others to hand over information that might provide a basis for suing them.
Two individuals have already sought such an order to require the Lilith Fund to disclose information about its funding and donors in order to determine if they violated the 2021 restriction on "aiding and abetting" an abortion by giving money.
The Thomas More Law Society - the same organization that successfully asked the Supreme Court to protect it from having to disclose its donors - is representing the people seeking donor information from the Lilith Fund, and tweeted that Lilith Fund donors could face legal action for violating the Texas abortion law's aiding and abetting prohibition.
A Texas trial court judge has found that the provisions authorizing anyone to sue someone who provides or "aids and abets" an abortion likely violate the Texas Constitution, and has temporarily enjoined the law, meaning that it is on hold pending appeal.
The case is likely to go to the Texas Supreme Court. How that court rules will have a great impact on the liability risk faced by the Lilith Fund for providing financial assistance to women to help them get an abortion. While the legal process is playing out, the Lilith Fund is trying to minimize its legal risk by suspending the distribution of money to women.
If the Texas appellate courts eventually uphold S.B.8, the ban on providing financial assistance to Texas women could be enforced. In that event, the Lilith Fund would be able to make a strong case that they don't need to reveal any information because of First Amendment protections.
The right to disburse money
If states try to punish abortion funds - or individuals - for providing a woman with financial assistance to get an abortion in another state where it remains legal, including the money required to travel there, that would likely violate the Constitution.
Giving money to people who want to obtain a legal abortion would not be "aiding and abetting" a crime. Moreover, the Constitution protects the right to interstate travel. The freedom to cross state lines is a right deeply embedded in U.S. history dating to the Articles of Confederation, prior to the Bill of Rights.
Assisting someone with obtaining a legal abortion by giving them money also could be protected as a form of free speech because it can be one aspect of advocating for and supporting the right to legal abortion. Disbursing these funds could also be protected under the Constitution as an aspect of the freedom to associate with women who seek legal abortions - by giving them financial support.