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Tuesday, December 06, 2022

Donation to help women get abortions is a first amendment right – protected by Supreme Court presidents

Several Texas abortion funds – which are charities that help people who cannot afford to pay for an abortion for their travel, subsistence and medical bills – suspended payments 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 have said they are taking this step to determine the legal consequences of the court’s ruling in Texas, which already has some of the country’s strictest abortion laws. Abortion funds in some other states, including Oklahoma, have reportedly stopped working.

Some funds active in Texas have taken this decision out of concern that their financial assistance to women seeking abortions may now be illegal in that state, as well as fears that their donors may also be sued for violating Texas law. .

But as an expert on reproductive rights and First Amendment who have argued before the Supreme Court, I believe that donations to abortion funds – even in places where it is illegal to help people get abortions – are protected by the US Constitution.

President in Schaumburg, Illinois

The Supreme Court has ruled on several occasions that fundraising, whether by charities or political candidates, is a form of speech protected by the First Amendment.

The court delivered its first relevant ruling in 1980, with its Schaumburg v. Citizens for a Better Environment Decision. The court rejected a city ordinance in Illinois that prohibited charities from soliciting donations unless 75% or more of their income was used directly for charitable purposes, rather than for salaries, administration, and overhead.

The city of Schaumburg defended that ordinance by arguing it regulates behavior involving commercial transactions and was necessary to prevent fundraising for fraudulent causes. The Supreme Court rejected this characterization, claiming that fundraising is a form of protected speech because it is “intertwined with informative and perhaps persuasive speech that seeks support for specific issues or for specific 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 probably cease.”

Campaign contributions as free speech

Several campaign funding decisions reinforced the Schaumberg ruling.

The most famous among them is Citizen’s United v. Federal Election Commission. Two other key decisions are Buckley v. Valeo, who preceded the Schaumberg case, and McCutcheon v. Federal Election Commission. All three have established that contributions to political candidates, and spending by those candidates, are 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, promote ideas and advocate for policy changes.

The first amendment right to raise or donate funds is not limited to charities or candidates. Mere handling on the street, the most basic form of fundraising, is entitled to First Amendment protection, according to several lower federal courts.

The right to donate – for controversial matters

The Supreme Court also held that the principle of freedom of association enshrined in the First Amendment protects the right to support a cause by making donations or paying membership fees.

Due to the freedom of association, which includes the right to join with others for social or political purposes, the court was very protective about the right of donors to remain anonymous. This was especially the case for donors who support controversial issues and when disclosing their identities, they may be subject to harassment, threats, public hostility or other forms of retaliation.

In 1958, the Supreme Court ruled in NAACP v. Alabama that the First Amendment prohibited Alabama from forcing the NAACP to disclose the names of its members or donors residing in the state. The court pragmatically acknowledged that compelling disclosure of supporters of a Alabama civil rights group in the 1950s could endanger donors.

Protect both sides

This first amendment principle of the protection of speech and the rights of donors to fund charitable causes protects both sides of the political spectrum.

In July 2021, for example, the Supreme Court ruled in a case brought by two organizations that are considered conservative: the Americans for Prosperity Foundation and the Thomas More Law Center. The two organizations challenged a law in California that required them to disclose the names of their donors who donated more than $ 5,000.

California sought to justify this law as necessary to prevent fraud by registered charities – the same “fraud prevention” rationale that Schaumburg unsuccessfully argued as the reason why it was necessary to restrict charity.

By relying, among other things, on the NAACP case, the Court in Americans for Prosperity Foundation v. Bonta finds that the mandatory disclosure requirement violated the donors’ right to freedom of association.

Under this 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 individuals to make donations to abortion funds.

Limit financial aid for abortions in Texas

A Texas law of 2021, known as Senate Bill 8, prohibits “aiding and abetting” an abortion after six weeks of pregnancy. The measure specifically mentions the provision of financial assistance as a form of assistance.

The law authorizes any person in the world to bring a civil damages lawsuit against anyone who “facilitates” an abortion and to recover attorney’s fees in addition to at least $ 10,000.

One reason abortion funds may now feel like it is that Texas law allows someone to apply for a court order to force others to hand over information that could provide a basis for suing them.

Two individuals have already requested such an order to require the Lilith Fund to disclose information about its funding and donors to determine whether they have violated the 2021 restriction on “assisting” an abortion by donating money.

The Thomas More Law Society – the same organization that successfully asked the Supreme Court to protect it from the publicity of its donors – represents the people seeking donor information from the Lilith Fund, and tweeted that Lilith Fund donors could face legal action for the violation of the Texas Abortion Act’s Assistance and Prohibition of Assistance.

A Texas trial court judge found that the provisions authorizing anyone to sue someone who provided or “assisted” an abortion were likely to violate the Texas Constitution, and temporarily overturned the law, meaning it is pending appeal.

The case is likely to go to the Texas Supreme Court. How those court rules will have a major impact on the liability risk the Lilith Fund faces for providing financial assistance to women to help them get an abortion. As the legal process unfolds, the Lilith Fund seeks to minimize its legal risk by suspending the distribution of money to women.

If the Texas appellate courts finally uphold SB8, the ban on providing financial assistance to Texas women could be enforced. In that case, the Lilith Fund will be able to make a strong case that they do not have to disclose any information due to protection of the First Amendment.

The right to pay out money

If states try to punish abortion funds – or individuals – because they provided financial assistance to a woman to get an abortion in another state where it remains legal, including the money needed to travel there, it will probably violates the Constitution.

Giving money to people who want a legal abortion will not be a crime to help and assist. In addition, the Constitution protects the right to interstate travel. The freedom to cross state borders is a right that is deeply embedded in American history dating from the Confederate Statutes, before the Bill of Rights.

Assisting someone in obtaining a legal abortion by giving them money can also be protected as a form of free speech, as it can be one aspect of advocating for and supporting the right to legal abortion. The disbursement of these funds can also be protected under the Constitution as an aspect of the freedom to associate with women seeking legal abortions – by giving them financial support.

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