Legal Fight Over Texas Abortion Law Spurs Donor Privacy Concerns

November 14, 2023 | Brian Hawkins

In the ongoing legal battle over a Texas anti-abortion law, donor privacy rights have taken center stage. Jonathan Mitchell, a former Texas solicitor general defending the law on behalf of the Texas Attorney General, issued multiple subpoenas aimed at obtaining and exposing sensitive information about the donors and volunteers to nine abortion funds in the state, raising serious concerns among abortion supporters and many Democrats about infringement of free speech and personal privacy rights.

In Fund Texas Choice v. Paxton, Fund Texas Choice, a nonprofit, is challenging the constitutionality of a Texas law that allows private citizens to sue doctors who perform an abortion in the state and, crucially, others who “abet” the procedure.

Mitchell’s subpoena seeks to compel the disclosure of a wide range of information related to abortion clinics and funds, specifically targeting their donors and volunteers. The information sought includes the names, addresses, contact information, and financial records of individuals who have supported these funds that assist individuals who wish to receive an abortion. Mitchell argues that the disclosures he seeks are essential to demonstrate future or potential violations of existing law. However, the implications of this subpoena, perhaps intentionally, will have a chilling impact on free speech and personal privacy.

“This is a stunning escalation attacking the free speech and privacy rights of so many people,” Neesha Davé, Executive Director of Lilith Fund, one of the abortion funds in the case, said in a statement to The Intercept. Davé continued: “We are talking about thousands of people among Lilith Fund’s supporters, followers, donors, clients, and volunteers.”

Donor privacy rights are protected by the First Amendment and strong legal precedents. Notably, Americans for Prosperity Foundation v. Bonta, a landmark case decided by the Supreme Court just two years ago in 2021, found that the state of California could not compel the disclosure of donor information from nonprofit organizations without a compelling interest and a narrowly tailored means of achieving that interest.

The AFPF ruling affirmed prior Supreme Court precedent in NAACP v. Alabama, a 1958 decision that upheld the privacy rights of individuals who donate to nonprofit causes, including supporters of the NAACP during the Civil Rights Movement. That ruling was reinforced and expanded in subsequent cases, including AFPF, protecting the rights of all Americans to support nonprofit groups privately and without risk of harassment or retaliation for their beliefs.

Though the targets differ, the Mitchell subpoena is reminiscent of a subpoena that similarly animated conservative activists a year ago. In Boe v. Marshall, the U.S. Department of Justice under the Biden administration sued Alabama challenging the state’s law banning gender transition surgeries for minors. During the litigation, the Department of Justice subpoenaed Eagle Forum of Alabama, a conservative nonprofit that supported the legislation in question. Much like the subpoena in the Fund Texas Choice litigation, the DOJ’s subpoena demanded Eagle Forum’s donor and member lists, internal research documents, and communications with state lawmakers.

Rightfully outraged, a coalition of conservative organizations filed an amicus brief repudiating the Biden Administration’s threat to the First Amendment. The federal judge overseeing the case agreed and rejected the subpoena request, calling it “overly broad and unduly burdensome” and questioned how the donor information and sensitive materials at issue could “possibly be relevant to this case.”

As recent developments demonstrate, progressives and social conservatives alike have reason to fear nonprofit donor disclosure as a weapon that threatens the causes they hold dear. The need for donor privacy transcends near-term partisan interests. Free speech and personal privacy rights must be protected regardless of ideological affiliation. Failing to do so threatens speech and privacy rights for everyone.