WASHINGTON, D.C. — Last night, America First Legal (AFL) filed an amicus brief in the Texas Supreme Court in a case involving the City of Austin’s provision of taxpayer funds to organizations that aid and abet abortions.

The Texas Constitution prohibits cities from enacting ordinances that “contain any provision inconsistent with the general laws enacted by the Legislature of this State.” Furthermore, Texas law prohibits conduct that “furnishes the means for procuring an abortion knowing the purpose intended,” and it also prohibits conduct that aids or abets a crime. Notably, the laws of Texas continue to define abortion as a criminal offense unless the mother’s life is in danger. 

The City of Austin’s budget provides taxpayer money to organizations that aid and abet abortions. Don Zimmerman sued, but the lower courts rejected his case without performing any meaningful analysis. In so doing, the lower courts continued a sloppy, outcome-oriented approach in deciding the case–an approach that has been prevalent in other abortion cases, including Roe v. Wade, 410 U.S. 113 (1973). AFL’s brief made several critical points, including:

– Courts have a long history of ignoring the law in abortion cases to achieve desired policy results. Court decisions in abortion cases–including the Supreme Court of the United States–have been notorious instances of policy-driven jurisprudence that disregard the law. 

– Courts lack the authority to “strike down” or erase laws. Legislative bodies make laws, courts do not. When a court declares a particular statute unconstitutional, it is simply saying that in the case before it, the statute is inconsistent with the Constitution. What a court does then is refuse to enforce the statute in a manner that produces an unconstitutional result in that case. But the statute remains on the books. 

– Texas law requires courts to regard statutes as presumptively severable. When a court finds that a particular statute in a particular case was unconstitutional, Texas law makes it clear that any component or applications of that statute not at issue in the case remain good law. 

AFL’s brief emphasizes that the judiciary is a coequal branch of government with the legislature, and has an obligation to apply the law, not pursue its own policy preferences. 

Read the full case here.