A federal judge in Texas has rejected a challenge by a former state legislator to an abortion law that bans the procedure after six weeks and allows private citizens to sue anyone who provides an abortion along with anyone who tries to help them.
Former Texas state Sen. Wendy Davis, a Democrat who memorably stood for an 11-hour filibuster against a 2013 abortion restriction that banned all abortions after 20 weeks and required doctors providing abortions to have admitting privileges at a nearby hospital, sued three Texas residents who publicly expressed plans to sue abortion funds under the 2021 law known as “S.B. 8.” That law creates a private cause of action for private citizens to sue any person who “aids or abets the performance or inducement of an abortion” after fetal cardiac activity is detected, usually about six weeks into pregnancy, before many women know they’re pregnant.
The law, which opponents have called a “bounty hunter law,” allows anyone to sue regardless of whether they have any connection to the abortion, patient, or provider, and provides for an award of at least $10,000 for each successful claim, effectively enabling private enforcement of the restrictive provision.
“S.B. 8 is a blatantly unconstitutional law that bans abortion beginning at approximately six weeks of pregnancy, as measured from the first day of a patient’s last menstrual period (‘LMP’), and incentivizes vigilante harassment of anyone who assists abortion patients,” the lawsuit said. Davis, along with plaintiffs Marva Sadler and Sean Mehl, are all affiliated with the Stigma Relief Fund, a nonprofit that provides financial and other support to women seeking abortions in Texas.
The complaint said that the law has “ironically” resulted in a higher-number of second-trimester abortions due to the difficulties imposed on women seeking to terminate their pregnancies.
“S.B. 8 seeks not only to strip Texans of their fundamental right to make decisions about their pregnancies based on their individual circumstances and religious beliefs, but also to make a mockery of the federal courts,” the complaint also said, adding that Texas officials have “admitted that the goal” of the law is to “prevent federal courts” from holding Texas officials accountable for the unconstitutional impact of the law.
The complaint named Mistie Sharp, Sadie Weldon, and Ashley Maxwell as defendants because they had all signaled an intent to go after Texas abortion funds under the law.
The defendants moved to dismiss the case. Along with that motion, the defendants filed sworn declarations in which each of them said they have no intention to sue any of the plaintiffs.
Last week, U.S. District Judge Robert L. Pitman granted the defendants’ motion to dismiss the case. His ruling was based in his finding that the plaintiffs hadn’t successfully shown that they would be injured by the defendants.
“The Court’s analysis begins and ends with its determination that Plaintiffs lack standing to sue over S.B. 8 because they have not articulated a credible, imminent threat that can be attributed to Defendants,” Pitman wrote in his ruling on Wednesday.
The judge cited a 2021 Supreme Court ruling against abortion providers in another high-profile case as precedent for why this lawsuit couldn’t proceed.
“In Whole Woman’s Health v. Jackson, the Supreme Court dismissed all claims against the Mark Lee Dickson after he provided sworn declarations renouncing his intention to sue,” Pitman wrote (citations omitted). “Because Defendants have provided similar declarations renouncing any intention to sue, the Court must find that Plaintiffs have likewise failed to establish ‘”personal injury fairly traceable”‘ to Defendants’ conduct.”
The judge, a Barack Obama appointee, said that it didn’t matter that the defendants in this case have made “written, public statements” declaring their intentions to sue Texas abortion funds and their associates and have taken “concrete steps” toward doing so, as the defendant in the Whole Woman’s Health case had prevailed after retracting similar statements.
“Furthermore, many of Defendants’ threats and ‘concrete steps’ appear to target specific abortion funds that are not parties to this suit,” Pitman added, noting that two of the defendants had taken action against two abortion funds that were not involved in Davis’ case. “If anything, the specificity of these petitions lessens the threats’ immediacy.”
Pitman found that the plaintiffs in the case were not able to show that they faced possible injury as a result of the defendants’ actions, and indicated that he could reach no other legal conclusion.
“S.B. 8 was designed to evade judicial review so that a plaintiff likely could only challenge the law by subjecting themselves to liability,” Pitman wrote (citations omitted). “Nonetheless, the Supreme Court’s holding in Whole Woman’s Health is clear. Like the defendants in Whole Woman’s Health, Defendants in this case have unequivocally renounced any intention to sue Plaintiffs under S.B. 8. With that, Plaintiffs no longer can establish an adequate injury, and the Court must grant Defendants’ motion and dismiss Plaintiffs’ claims for lack of standing.”
Texas House Rep. Briscoe Rowell Cain III, a Republican, was also initially named as a defendant, but he was terminated from the case in August 2022, according to the federal docket.
“While the ruling is disappointing, it won’t stop us from standing with abortion funds and others who support pregnant people,” said Rupali Sharma, Senior Counsel and Director at the Lawyering Project, on behalf of the plaintiffs. “Anti-abortion activists want to isolate pregnant people from their communities and support systems. That is simply unconscionable. Showing up for pregnant people and supporting them in whatever decision they make about their pregnancy is non-negotiable, and we will never give up on fighting for those fighting for them.”
Read Pitman’s ruling here.
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