How Ken Paxton Expanded His Anti-Abortion Crusade Far Beyond Texas
Texas Attorney General Ken Paxton
Early in his tenure as Texas attorney general, Ken Paxton issued a statement commemorating what he believed was a national tragedy.
“It’s impossible to fill the void of more than 50 million missing human beings,” he said in 2016. He was marking the 43rd anniversary of Roe v. Wade, the Supreme Court ruling that protected abortion rights — and had long stood in the way of efforts to ban terminations in early pregnancy, when most abortions occur.
Paxton spent the years that followed testing Roe’s limits and ultimately prevailed where others had failed: In 2021, he defended a near-total abortion ban that Texas legislators had designed to evade conventional legal challenges. The U.S. Supreme Court allowed it to take effect while Roe remained in force.
After the justices overturned Roe the following year, Paxton kept pushing, pursuing new ways to extend the reach of Texas’ restrictions. He prevailed against the Biden administration, picked fights with states that protect abortion access and pioneered strategies that his peers later adopted or expanded.
While Paxton’s tenure as attorney general has drawn criticism from across the political spectrum for his personal scandals and alleged misuse of the office, detractors and allies alike agree that his signal achievement as the state’s top legal official has been advancing restrictions on abortion.
A close look at his record shows a clear pattern in his successes: He relentlessly tests the limits of the law and employs novel legal strategies to advance his goals.
Paxton’s national role as an anti-abortion warrior would change if he wins his U.S. Senate race. As Texas attorney general, he has been able to act largely on his own authority. If he prevails in November, he would become one of 100 senators in a chamber where most legislation needs 60 votes to overcome a filibuster.
But allies who have witnessed his victories see an opening.
“He’ll have the ability to use some of the laws that he’s defended in Texas as influence to draft legislation in the U.S. Senate,” said Mary Elizabeth Castle, director of government relations at Texas Values, a Christian advocacy group that supports a national abortion ban.
Legal experts and advocates on both sides expect he could join colleagues who are pressuring the Food and Drug Administration to revoke its approval of the abortion drug mifepristone.
Anti-abortion activists at the state and federal level are also trying to secure legal rights for fetuses, which could have implications for reproductive care like birth control and in vitro fertilization. Paxton, who has called himself a strong supporter of IVF, recently said he was open to restrictions intended to prevent the loss of fertilized eggs.
His litigation has also raised questions that experts expect the Supreme Court to confront, including whether a federal law, which mandates hospitals provide stabilizing care to patients having an emergency, overrides state abortion bans; whether to treat a fetus as a separate patient that has its own emergency care rights; and how far states can go in pursuing out-of-state doctors who prescribe abortion medication to patients in states where it’s banned.
During the current race, abortion has played a far smaller role than questions about Paxton’s ethics. His Democratic opponent, James Talarico, has said that he supports restoring a federal right to abortion and that his Christian faith calls for an end to “extreme” laws that Paxton has defended and that have forced women to flee the state for emergency abortion care.
Lately, Paxton has said little about abortion — an issue on which he has defended restrictions more stringent than many Texans say they want.
But those who have watched Paxton extend the reach of Texas law beyond its borders are paying close attention to his Senate bid.
Dr. Jennifer Villavicencio, an abortion provider, said she has felt compelled to move her family twice to states with strong laws shielding doctors from out-of-state litigation, partly out of concern that Paxton is creating a blueprint for targeting providers like her.
“It’s very disheartening and scary to think that it’s maybe coming to the U.S. Senate,” she said.
Paxton successfully defended a near-total abortion ban before Roe v. Wade was struck down.
When Paxton became Texas attorney general in 2015, there was no ambiguity about where he stood on abortion.
Raised by an anti-abortion activist, he married his sweetheart from a Christian college, who spoke proudly about the fact that she was adopted, saying her birth mother “chose life.” She campaigned for Paxton, but he had his own bona fides. A law he’d co-sponsored as a state senator banned almost all abortions after 20 weeks.
Similar 20-week bans had taken root across the country as decades of court rulings chipped away at Roe, but no state had managed to enforce a ban as early as six weeks. More than a dozen tried, passing laws that prohibited abortion when cardiac activity could be detected. One after another, they were blocked by judges.
Then, in 2021, a Texas lawyer named Jonathan Mitchell worked with legislators to craft a law that would withstand similar challenges. Instead of having state officials enforce their “heartbeat law,” the new act, referred to as Senate Bill 8, allowed citizens to sue physicians they suspected were providing abortions. The law offered up to $10,000 if they won.
When abortion providers and President Joe Biden’s administration separately challenged the law in federal court, Paxton’s office argued that state officials couldn’t be ordered to stop enforcing it because they had no power to do so in the first place. Only private citizens could.
“Because the executive officials are expressly prohibited from enforcing SB 8,” his office wrote to the Supreme Court, “there is nothing for a federal court to enjoin.”
The Supreme Court agreed that Paxton couldn’t be sued because “the petitioners have not identified any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising.”
The law remained in effect, becoming the first enforceable six-week ban under Roe.
Legislators in Idaho and Oklahoma subsequently passed similar laws.
For Dr. Sam Dickman, who worked at a San Antonio Planned Parenthood, the implications were clear: “I was going to need to either entirely change the type of medicine I was providing or leave the state,” he said. He opted for the latter, moving to Montana, where abortion is legal until viability, or roughly 24 weeks.
Days after the Texas ban took effect, Josseli Barnica arrived at a Houston hospital in the midst of a miscarriage. She was 17 weeks pregnant and her fetus’s head was pressed up against her dilated cervix. Because the situation put her at high risk of developing an infection, medical experts said doctors should have offered to speed up delivery or empty her uterus; the fetus was not viable, and losing the pregnancy was inevitable.
But the fetus’s heart was still beating.
Barnica relayed to her husband what she said her medical providers had told her: “They had to wait until there was no heartbeat,” he told ProPublica in Spanish. “It would be a crime to give her an abortion.”
For 40 hours, Barnica waited, her uterus exposed to bacteria.
She died days later of sepsis. Medical experts told ProPublica her doctors did not follow the proper standard of care and that Barnica’s death was preventable.
In a statement, HCA Healthcare, the hospital chain that treated her, said “our responsibility is to be in compliance with applicable state and federal laws and regulations” and said that physicians exercise their independent judgment.
Paxton blocked federal guidance for emergency abortion care, doing harm far beyond Texas
When the Supreme Court overturned the constitutional right to abortion on June 24, 2022, Paxton dismissed his staff at noon to celebrate. He would later designate the date as a paid office holiday, Sanctity of Life Day.
The Texas Legislature had prepared for the occasion, passing a law that went into effect shortly after the overturning of Roe. The ban threatened doctors with up to 99 years in prison if they performed an abortion. But soon came what Paxton framed as a federal attempt to thwart the state law.
The Biden administration issued a memo to doctors in states with abortion bans saying that a federal emergency care law protected their medical judgment, “regardless of the restrictions in the state.”
The federal Health and Human Services secretary at the time said doctors had an obligation to follow the Emergency Medical Treatment and Active Labor Act, better known as EMTALA. The law requires hospitals that accept federal funding to screen and stabilize every patient who arrives.
For those with complications such as severe preeclampsia, a potentially fatal, pregnancy-related blood pressure disorder, stabilizing a patient might require performing an abortion, even if the state forbids it, the guidance said. “The physician must provide that treatment,” it said, bolding the word “must.”
Paxton sued, accusing the administration of an attempt to use federal law “to transform every emergency room in the country into a walk-in abortion clinic.”
He argued EMTALA was created to make sure hospitals didn’t dump uninsured patients back on the street without treatment, not to override state laws. He took the argument a step further, suggesting that under EMTALA, doctors might need to consider “the life of the unborn child.”
The argument was novel, six legal experts told ProPublica.
“He’s basically suing the federal government to protect Texas’ right to force pregnant women to not get abortions, even when their health is threatened,” said Greer Donley, a law professor at the University of Pittsburgh. “I remember thinking, ‘Wow, that’s radical.’”
Medical groups warned patients would die.
But a federal judge sided with Paxton that August, and the 5th U.S. Circuit Court of Appeals affirmed the decision in January 2024.
The ruling did more than keep the administration from enforcing its EMTALA interpretation in Texas.
It barred the federal government from pursuing cases against members of two anti-abortion medical organizations that had joined Paxton’s suit as plaintiffs, the American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical & Dental Associations. This effectively exempted them from having to follow the federal guidance, regardless of where they worked.
It also served as immediate litigation fodder for another state fighting to enforce its own abortion ban.
Idaho had not had the same success in court as Texas. After the Biden administration sued, arguing the state’s ban conflicted with EMTALA, Idaho lost in lower and appellate courts, leaving its ban effectively frozen in emergency cases, with doctors instructed to follow the federal guidance.
But Paxton’s 5th Circuit win on Jan. 2, 2024, gave Idaho’s ban a lifeline. The ruling conflicted with the 9th Circuit’s decision in Idaho, creating the kind of disagreement between federal appeals courts that the Supreme Court often steps in to resolve.
The following day, attorneys representing Idaho asked the high court to do just that, saying Paxton’s success showed they were “likely to prevail.” In the meantime, they asked the court to unfreeze the ban.
On Jan. 5, the Supreme Court allowed Idaho to fully enforce its ban while the case proceeded.
Emergency doctors began hesitating over when they could legally provide abortions, Dr. Jim Souza, chief physician at St. Luke’s Health System, said on a press call at the time, according to NPR. “Is she septic enough for me to do this abortion and not risk going to jail and losing my license?”
In the three months that followed, St. Luke’s, the state’s largest hospital system, said it had to airlift six patients out of the state for abortions.
In Texas, ProPublica has documented the consequences for women experiencing pregnancy emergencies.
When Tierra Walker sought care later that year in San Antonio, she developed preeclampsia and ultimately died from it, ProPublica previously reported. None of the 90 physicians involved in her care offered her the option of terminating her pregnancy, even after she asked if doing so might keep her safe.
Her family sued Paxton in September, along with state medical officials and several healthcare providers, alleging that Texas’ abortion restrictions and the care Walker received led to her death. Paxton has not responded to the suit and did not respond to a request seeking comment.
ProPublica has identified at least two other pregnant Texas women who died without what experts said was appropriate emergency care. Paxton has not publicly commented on any of their deaths and did not respond to ProPublica’s questions about them. Our analysis also found worsening outcomes across the state for patients experiencing pregnancy complications.
The reach of Paxton’s legal victory may not end there.
The Supreme Court still hasn’t resolved the conflict between the circuit rulings. It declined to do so in the Idaho case, and after President Donald Trump took office, his administration dropped the suit and rescinded the EMTALA guidance.
But legal experts told ProPublica the Supreme Court has yet to resolve core questions that Paxton’s litigation raised: whether EMTALA preempts state abortion laws and whether a fetus also has a right to emergency treatment that could conflict with the mother’s interests in cases where her health is at risk.
To guard against future rulings, a reproductive rights advocacy group called All* Above All is pushing state-level legislation to safeguard emergency care. “We’re seeing the chaos right now and the confusion,” said its president, Nourbese Flint.
Paxton tested expansive new ways to pursue abortion providers. Other states are following his lead.
On December 7, 2023, a state judge in Austin issued a ruling that Paxton immediately moved to stop.
A 31-year-old mother named Kate Cox wanted permission to get an abortion. She was 20 weeks pregnant and carrying a fetus diagnosed with trisomy 18, a genetic condition that kills the vast majority of babies born with it.
Texas doesn’t allow abortions for fatal fetal anomalies, but Cox’s doctor argued that if she was forced to give birth, it could imperil her ability to get pregnant again. It was also medically risky: Cox had already had two children by cesarean section, and the chances of complications increase with each procedure.
The day a Travis County district court judge granted her request, Paxton took a step legal experts told ProPublica they had not seen another state attorney general take:
He sent letters to three hospitals where Cox’s doctor had admitting privileges, threatening legal action if the doctor performed the abortion a judge said she could have. The court order, he wrote, did not insulate hospitals, doctors, or anyone else from civil and criminal liability for violating Texas’ abortion laws.
At the same time, he appealed the case to the Texas Supreme Court, saying that Cox did not face the kind of threat to her life that fell under the law’s exception. If legislators had wanted to write an exception for fatal fetal anomalies, he said, they would have done so.
“The Texas Legislature did not intend for courts to become revolving doors of permission slips to obtain abortions,” he said.
The Texas Supreme Court agreed with Paxton and reversed the lower court’s ruling. By that time, Cox had sought an abortion out of state.
“It was incredibly scary,” Cox told ProPublica. “We saw in my case that Texas will go after doctors.”
Paxton was also the first — and, so far, the only — attorney general to criminally prosecute a provider in his state for violating an abortion ban.
According to court documents, investigators got an anonymous tip alleging that abortions were being performed at a medical clinic that catered to low-income, Spanish-speaking patients, managed by Maria Rojas, a licensed midwife.
Rojas was arrested and charged with practicing medicine without a license and violating the state’s abortion ban. Paxton also moved to temporarily shut down the clinic and others she ran while the case progressed through court. Months after her arrest, Paxton announced he had arrested and indicted eight other clinic staffers for practicing medicine without a license.
Rojas has pleaded not guilty to the charges. Her attorneys have accused Paxton’s office of a shoddy investigation and argued that at least one case prosecutors were treating as an abortion was actually the management of a patient’s miscarriage.
A trial has not yet been scheduled, but an appeals court this summer overturned the order shuttering the clinics, finding the state had not presented sufficient admissible evidence to justify a temporary injunction. Paxton said he is appealing the ruling. The court did not rule on whether Rojas had actually performed illegal abortions.
Paxton has not stopped at the state border in his pursuit of doctors.
In December 2024, he sued Dr. Margaret Carpenter, a New York-based physician, accusing her of violating multiple Texas laws when she treated a patient via telehealth who lived in Plano, a suburb north of Dallas, and prescribed her abortion medication.
Because the patient was based in Texas, he argued, Carpenter was subject to laws there that banned abortion and required a license to practice in the state.
Carpenter didn’t respond to the suit, so Paxton won by default. But Texas was unable to collect on more than $100,000 in civil fines and court fees that resulted; a New York county clerk refused to register the judgment, invoking a “shield law” that protects providers of abortion care that is legal in New York from certain out-of-state investigations, prosecutions and judgments. At least 22 states have passed shield laws since Roe was overturned, and New York’s is among the strongest. Carpenter did not respond to a request seeking comment and has not publicly responded to the case.
A New York judge dismissed Paxton’s case seeking to enforce the judgment, but Paxton didn’t give up, filing two more civil suits this year against practitioners and organizations in Delaware and California that mail abortion medication to Texas.
Three other state attorneys general have now expanded on the strategy. Last month, Louisiana Attorney General Liz Murrill — who brought criminal charges against Carpenter after Paxton sued her (and has faced similar obstacles in New York) — joined the attorneys general of Arkansas and Alabama in filing a sweeping federal civil suit against out-of-state providers of abortion pills. The case names some of the same providers Paxton pursued; they have challenged the suits. The three attorneys general filed a separate action directly with the Supreme Court asking it to strike down shield laws in New York, Massachusetts and California.
Paxton has moved beyond doctors to target other entities that help patients obtain abortions. Mary Ziegler, an abortion historian and professor of law at University of California, Davis, called him “an innovator in terms of broadening the network of people who were seen as culprits or aiders or abettors.”
He sent cease-and-desist letters to organizations that ship abortion medication into Texas; the attorney general of Alabama subsequently used similar tactics. And Paxton sued cities in his state to stop them from disbursing funds to help women travel for abortions — a move the Legislature followed with a law banning such funding.
Following his legal victory against the city of San Antonio early this year, in which it was forced to end the $100,000 program, Paxton made a vow:
“I will always do everything in my power to prevent radicals from manipulating the system to murder innocent babies.”
Reprinted with permission from ProPublica
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