October 5, 2022

Judge orders Ken Paxton to testify in abortion lawsuit


A federal judge on Tuesday ordered Texas Attorney General Ken Paxton to testify in an abortion lawsuit, reversing course after Paxton was accused of fleeing to avoid a subpoena.

U.S. District Judge Robert Pitman — who initially granted Paxton’s request to quash the subpoena over its last-minute nature — ordered the Texas attorney general to testify after it was made clear that there were several attempts to serve him with the subpoena in advance.

Pitman said in Tuesday’s order that the court originally granted the request on the assumption that Paxton “had made candid representations.”

The group that filed suit in the case — which comprises several nonprofit abortion funds and an OB-GYN — requested Paxton’s testimony to clarify his previous statements about the enforcement of Texas’s trigger law in regard to out-of-state abortions.

After the abortion funds sued Paxton in August, claiming that his statements have infringed on their abilities to facilitate out-of-state abortions, Paxton responded that there is “no imminent threat of enforcement.” However, he also said his office views out-of-state abortions as illegal.

The group made several attempts to serve Paxton with the subpoena. On one occasion, a process server said the Texas attorney general ran away from him to avoid the subpoena. 

When the two sides submitted their witness lists the day before a scheduled hearing in late September, Paxton asked the judge to reject the subpoena since it was made at the “eleventh hour” and called into question whether he had been properly served. Pitman granted the request.

Upon learning more about the attempts to serve Paxton, the judge reconsidered his previous order. Pitman rejected the attorney general’s request this time, noting that he has unique, firsthand knowledge of his own policies.

“Paxton has inserted himself into this dispute by repeatedly tweeting and giving interviews about the Trigger Ban,” Pitman wrote in Tuesday’s order. “Having added his voice many times—not just in a press release or official statement but in intentional ways designed to reach Texans from within his role as Attorney General—Paxton alone is capable of explaining his thoughts and statements.”

The group bringing suit also claimed that Paxton’s ambiguous comments have left them unable provide care to patients. Pitman agreed that the attorney general’s testimony is needed for clarity.

“If their fears are unwarranted, then that will become clear during the course of his testimony,” the judge said. “But the Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purposes of deterrence and as hypothetical for the purposes of judicial review.”

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