Fund Texas Choice, et. al v. Deski, et. al (August 31, 2026)
Formerly Fund Texas Choice et. al. v. Ken Paxton et. al.
On August 31, 2026, the U.S. Court of Appeals for the Fifth Circuit will hear oral arguments in our case, now known as Fund Texas Choice v. Deski. This is a critical moment, and we want our supporters to understand exactly what is, and is not, being decided.
The court will not rule that day. Oral arguments are the stage where both sides make their case to a panel of three justices, and a decision is expected to follow in the next 6-12 months. Just as important, this hearing is not about whether abortion funds’ work is legal. It is about something narrower and, in many ways, more troubling and far more encompassing: whether Fund Texas Choice alongside other Texas abortion funds – or anyone – is even allowed to bring this lawsuit at all.
Here is how we arrived at this point:
- After the Western District Court of Texas protected us with the 2023 injunction, our case continued. The ruling also dismissed Attorney General Ken Paxton, but only because the Court made it clear – the Attorney General’s authority cannot go beyond its own state’s borders and that helping Texans leave the state is not an act in which the Attorney General’s authority can reach.
- Along the way, the remaining defendants in the case, the local prosecutors, asked to be dismissed on the grounds of sovereign immunity, a legal doctrine that shields government officials from certain lawsuits, and later argued that on the basis of a recent ruling in Mi Familia Vota v. Ogg, our case should be dismissed.
- Mi Familia Vota v. Ogg was decided in the summer of 2024 (but was filed two years after we filed this case and expedited) by the Fifth Circuit Court of Appeals. Soon after, prosecutors argued the ruling in Ogg should be applied to our case, meaning Fund Texas Choice and our fellow abortion fund partners should not be allowed to continue our lawsuit.
- Ogg disrupted more than a century of settled law. The doctrine it narrowed – Ex parte Young – had long let people take an unconstitutional law to court before they were ever arrested or punished under it. The Fifth Circuit is trying to change the rules so that far fewer people are allowed to sue in the first place.
- In 2025, Judge Pitman of the Western District ruled that he was forced to dismiss the prosecutors in our case due to the Ogg ruling, and said:
Though the Court fears that Ogg makes Ex Parte Young easily avoidable and severely limits plaintiffs’ ability to seek preenforcement review of constitutional violations, (see Dkt. 458, at 14–19), the Court is bound by the opinion.
- Under Ogg’s new tightened standard, the court found that the prosecutors had not threatened us enough for us to overcome the sovereign immunity argument in the case. Again, this has not been the standard to file a lawsuit since 1908.
- Since the District Court’s hands were tied, our case was dismissed. We weren’t going to let the courts off the hook easily – so we appealed. We knew that such a ruling would make individuals in Texas, Louisiana, and Mississippi less safe, while also making it significantly harder for their residents to seek any legal recourse.
- That appeal is what the Fifth Circuit takes up on August 31.
The question now before the court reaches far beyond abortion access. It is whether anyone can challenge an unconstitutional law in federal court before someone has already been prosecuted under it. For over a century, a legal doctrine called Ex parte Young has said that you can. If the Fifth Circuit’s narrowing of that doctrine stands, it would mean that Texas, Louisiana, or Mississippi can write nearly any criminal law and keep it beyond the reach of a courtroom until the day it is finally used to arrest someone. Residents in these states are getting a discounted version of the Constitution because they are unable to use the law as it was intended and how it has been practiced for over a century.
We want to be transparent with our community about what is at stake, and equally honest about where we stand. We are still operating, and Texans are still reaching care through our support today. We have never wavered from our mission to legally assist Texans in equitably accessing abortion through safe, confidential, and comprehensive travel services and practical support, and we will not waver now.
This fight has never been only about Fund Texas Choice or our fellow abortion fund plaintiffs. It is about the thousands of Texans who depend on this network every year, and about the right of every person in this state to have the courts work for them. No one should be prevented from accessing abortion care because of where they live or how much money they have, and no one should be stripped of their right to challenge an unjust law. We will keep fighting on both fronts.
Keep up with the status of our lawsuit here, our newsletter, or on our social media platform to stay updated.
Fund Texas Choice v. Paxton (February 24, 2023)
On February 24, 2023, US District Judge Robert Pitman issued a ruling in our case Fund Texas Choice v. Paxton. The decision, although long and complex, outlined a few key important points:
- The Attorney General was dismissed from our case, but only after being told he cannot pursue legal relief against abortion and practical support funds, or providers, for providing out of state care to abortion seekers.
- The Trigger Ban (HB1280) does not apply to out of state conduct and is only enforceable in Texas, thus reinforcing our capacity to support pregnant Texans’ access to abortion care.
- The judge acknowledged there is a danger of District Attorneys trying to enforce pre-Roe laws to stop us from doing our work, and so he ISSUED THE INJUNCTION to protect us from criminalization.
We are incredibly happy with this order, as it provides us a level of protection in continuing our mission and helps us move towards providing abortion seekers some level of support again. We have never wavered from our mission to legally assist Texans to equitably access abortion through safe, confidential, and comprehensive travel services and practical support.
This win is not just for Fund Texas Choice or the other plaintiffs, but rather, for thousands of Texans who may now be able to access the abortions they deserve and need. That is why, even with this preliminary injunction, our case continues; we are still fighting to ensure that access to travel and funding are available for abortion seekers across the entire state.
In this hostile landscape, practical support and abortion funds have been eager to provide crucial support to their communities by helping pay for abortions, transportation, lodging, childcare and more. We are proud that this decision will allow us to move forward to provide this support. No one should be prevented from accessing abortion care because of where they live or how much money they have, and this preliminary injunction reinstates our capacity to legally support abortion seekers when they are traveling out of state.
Fund Texas Choice v. Paxton (August 23, 2022)
Fund Texas Choice, along with eight other abortion and practical support funds and a medical provider, have filed a proactive lawsuit (Fund Texas Choice v. Paxton) seeking to ensure we can continue to legally assist pregnant Texans in exercising their constitutional rights to travel and to protect our constitutional rights to free speech and association.
Since the Supreme Court decision in Dobbs v. Jackson Women’s Health, we have been under direct threat of criminal and civil liability for our support of pregnant Texans, forcing us to reevaluate and drastically alter our operations to protect our staff, board, volunteers, donors, and clients from criminal and civil prosecutions that violate our constitutional rights.
Our proactive lawsuit asserts that while abortions are prohibited in virtually all circumstances under Texas state law post-Dobbs, those laws cannot restrict other constitutional rights of Texans, including:
- the right to travel freely to and from other states,
- the rights to free speech and association,
- the right to donate money to political causes they believe in, and
- the right to extend compassion to family, friends, and community members in need.
Compassion and care are not criminal activities, and Texas law cannot control conduct throughout the country. Our case asserts that travel, advocacy, political and practical donations, and speech are constitutionally protected activities. This lawsuit seeks to end the ongoing threats and intimidation by extremist legislators and government officials and to allow us, our partner organizations, and all people in Texas to provide compassionate care and assistance to pregnant Texans in need of reproductive support.
Keep up with the status of our lawsuit here or on our social media platforms to stay updated!