Fighting Zombie Laws: Inside Fund Texas Choice v. Deski

Texas abortion funds help people travel out of state for abortion care in states without deadly, restrictive bans. The funds buy plane tickets, book hotel rooms, coordinate childcare, and cover the cost of the procedure. No one at these abortion funds performs abortions or prescribes abortion medication. They help people access the reproductive healthcare that Texas law does not and cannot reach.

Immediately after Roe v. Wade fell in 2022, Texas Attorney General Ken Paxton announced that the state's pre-Civil War "zombie laws" were back in effect. These "zombie laws" refer to statewide abortion bans passed before the Civil War that sat dormant for roughly a century—never formally repealed, but never enforced. When Roe was overturned, Paxton argued these bans were suddenly live again, and that anyone who "furnishes the means" for an abortion could be prosecuted under them.

Soon after Paxton's advisory, many Texas abortion funds went dark. One by one, the organizations that made up the Texas abortion access network stopped answering requests, stopped booking travel, and stopped funding healthcare.

Paxton's attempted revival of the "zombie laws" didn't require a single prosecution to do its damage—only the belief that prosecution would occur. A law that hasn't been used in nearly a hundred years is now being pointed at people who believe they're following the rules—and nobody can say for certain who's right. If the funds can't tell where the line is, based on what's being reported and what elected officials are saying, the people they exist to serve can't either, which is a short step to believing Texans are all out of options.

In August of 2022, Fund Texas Choice and several other Texas abortion funds sued Paxton and a class of county and district attorneys, seeking affirmation that this work—helping Texans travel out of state for legal abortion care—is not a crime.

In February 2023, a federal district judge issued a preliminary injunction in the abortion funds' favor. The same ruling, however, dismissed Paxton from the case. The judge reasoned that because the funds' work happens outside Texas, Paxton had no authority to prosecute it—so the threats that had shut down the network were, legally speaking, ones he never had the power to carry out.

That reasoning put the funds in an impossible position. The Attorney General of Texas had promised, publicly, to oversee the criminalization of their work. They had no way to know if he meant it, and no reason to assume he didn't. But when they sued over the threat, the court told them he was never the right person to answer for it.

With Paxton out of the case, the funds' only remaining path to a final ruling ran through the local and county prosecutors—until Mi Familia Vota v. Ogg (2024).

In that separate case, the Fifth Circuit set a new, extraordinarily high bar for individuals who initiate these kinds of lawsuits: they must show that the government official they are suing has both a "specific enforcement duty" and a "demonstrated enforcement intent." That a government official has the power to cause harm is not enough either.

Using that standard, Texas moved to dismiss the prosecutors too—arguing that they had never expressed any intent to criminalize the funds or their workers, only that they had the power to.

So: Paxton had the threats, but not the power, and the prosecutors had the power, but not the threats. Under Ogg, that symmetry could leave the funds with no one left to sue.

The implications of Ogg reach well past Texas. The mechanisms at work in this case—private enforcement, zombie statutes, the strategic use of ambiguity—are being deployed in statehouses across the country. If the funds lose here, their defeat will serve as a warning to everyone else: that a state can make a law real without ever enforcing it, and the people on the other end have no way to challenge it until the harm has already arrived.

Anna Rupani, Executive Director of Fund Texas Choice, described what it felt like to sit in the courtroom during oral arguments back on August 31. Being there, she said, was validating—even though nothing was decided that day.

"I think just being there, even though it's not over, was really validating. One of the justices on the panel, as a former prosecutor himself, seemed to agree that we as Texans deserve to know exactly what a crime is as a matter of principle. We shouldn't have to guess whether threats to criminalize us are serious. The state owes us that clarity up front."

What the funds are asking for is rooted in a principle older than any abortion statute: due process requires that a criminal law be clear enough for an ordinary person to know what it prohibits. The funds aren't asking the court to declare abortion legal in Texas. The funds are asking the court to say, plainly, that helping someone travel for legal care is not a crime—and that the state cannot decide otherwise based on political whim.

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The legal principle the funds are invoking is not an abstraction. Texas has spent the last several years demonstrating what happens when no court is positioned to enforce it.

Last year, a Houston-area midwife was indicted on fifteen felonies over allegations that she continued to provide abortion care despite state bans. Her prosecution sits alongside Texas's own lawsuits against the cities of Austin and San Antonio for providing financial assistance to residents traveling out of state for abortion, as examples of the same posture: the state treating care and compassion as a public safety threat.

Earlier this year, several of the defendants involved in a Prairieland-area protest against ICE were sentenced to 30 to 100 years in federal prison. Their sentences were explicitly framed as sending a cruel, chilling deterrent message to their fellow Texans organizing against the continued caging of their immigrant neighbors.

In the current federal judicial climate, Texas's criminal enforcement machinery is capable of redefining any activity it dislikes as a serious crime—from midwifery to helping someone cross state lines for abortion care to political protest.

Rupani connected the recent sentencing of the Prairieland defendants directly to the stakes of her own case.

"It's not very hard to see that, in our current political climate, furnishing the means could mean anything on a given day, whatever the powers that be don't want you to do, they're gonna find a way to make it so that you can't do it. We can't just act like that is not a constant, looming threat. It is absolutely not hypothetical."

If the Fifth Circuit ultimately dismisses this lawsuit and the Ogg standard is upheld, abortion funds, bail funds, mutual aid networks, and even legal defense groups could face a shared, grim fate. As long as a state legislature passes a law with criminal penalties attached—whether it's been enforced a hundred times or hasn't been used in a hundred years—anyone challenging it must first be directly and severely harmed before they can sue.

"They want a world where the only way to challenge a law is to let it put someone in handcuffs first."

And we cannot allow that to be the case.

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That loop is not self-sustaining. It depends on people—the ones who decide whether to file charges, whether to open an investigation, whether to let a threat stay a threat. The funds don't expect a final ruling in their case until at least 2027, but some of the people who will decide whether they can operate in the meantime are on the ballot this November.

The midterms will dominate the next several weeks of news coverage, and most of that coverage will focus on the U.S. Congress and the composition of each state's legislature. But Fund Texas Choice v. Deski is a reminder that the architecture of abortion criminalization isn't contained to Washington or the state capitol. It lives, in large part, in the hands of people whose names the average Texan never learns.

The Texas legislature has already passed a series of bills aimed at criminalizing help with abortion access. That these laws are on the books at all is already injustice. But a law on the books is not the same as a law in effect. Whether a statute becomes a prosecution—or a chill, or nothing at all—depends on enforcement, and enforcement is a choice made by individuals: district attorneys, attorneys general, judges. People who answer to Texas voters in ways that are easy to overlook when the spotlight is always fixed on Washington or Austin.

If candidates committed to making an example out of abortion funds take office at any level, the pressure to do so intensifies and reverberates at all levels of government. But the same discretion that Paxton used to shut down this support network is the discretion a future Attorney General could use to refuse to. That is not a partisan observation—it is a description of how a certain kind of governance works, one that gets the least attention yet often has the highest stakes. First, Ogg raised the bar for suing officials who threaten enforcement but haven't yet carried it out. Then prosecutors learned to describe their own power without acknowledging any intention to use it—a rhetorical discipline that now functions as a legal shield. The result is a closed loop: officials can threaten, but the threats are too vague to challenge; the people threatened must wait to be harmed, but the harm is designed to arrive without warning. In this loop, the state's most effective tool is the credible possibility of prosecution, suspended indefinitely over people's heads, immune from review.

Texas' governance strategy is already traveling. SB 8's bounty-hunter mechanism has inspired copycat legislation in Florida, Ohio, Arkansas, and Alabama. The Prairieland sentences, which converted protest into decades of prison time, offer a model for anyone who wants to treat dissent itself as a public safety threat. Texas has long-proven that what happens here doesn't stay here, and its zombie-law maneuver will be no exception.

Rupani sees the same pattern.

"They're trying different things, seeing what works, seeing where they can make progress. And they'll use those tools in as many places as they can."

The abortion funds didn't close because the state proved its case. They closed because the state made the case impossible to disprove. Fund Texas Choice v. Deski has become a test of whether the courts will enforce the most basic limit on state power: that before the government can call something a crime, it has to say so clearly, in advance, to everyone.

"We're not just fighting for abortion funds to exist," Rupani said. "We're fighting for everyone's right to have the judicial branch work for them and have their day in court."

Whatever the Fifth Circuit decides, the question it leaves Texans with is the one Paxton's "zombie law" advisory was designed to raise: If you can't even find out whether your work is a crime until it's too late, who exactly is the law protecting?