Wendy Davis
Former Texas State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill, has filed a federal lawsuit challenging Texas’ recent abortion law. The suit claims the law is “blatantly unconstitutional” and written to “make a mockery of the federal courts.”
The law, which went into effect in September and empowers private citizens to bring civil lawsuits against anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, has led abortion clinics to stop providing the procedure after about six weeks of pregnancy.
Meanwhile, abortion funds — nonprofit advocacy groups that help pay for abortions and related expenses — have seen increased demand from pregnant Texans seeking care outside the state. This financial support has put these funds in the crosshairs of abortion opponents, who have claimed on social media and in legal filings that abortion fund donors, employees and volunteers are susceptible to lawsuits and criminal charges.
Davis, who was the Democratic nominee for Texas governor in 2014 and unsuccessfully ran for Congress in 2020, donates to and works with the Lilith Fund for Reproductive Equity, an Austin-based abortion fund, according to the lawsuit. She claims in the suit that these threats against donors and volunteers “have had a chilling effect” and stop her from associating with “like-minded people to express her views and achieve her advocacy goals.”
“Accordingly, she intends not to make any additional donations to Texas abortion funds until the Court provides clarity on this issue,” the lawsuit said.
She is joined in the suit by the Stigma Relief Fund, an abortion fund associated with abortion provider Whole Woman’s Health, and Marva Sadler and Sean Mehl, who both work for Whole Woman’s Health and serve on the board of the Stigma Relief Fund. Sadler and Mehl say in the suit that they have stopped donating to abortion funds “until the Court clarifies whether and to what extent [they] can face liability for doing so.”
They are suing state Rep. Briscoe Cain, R-Deer Park, and three private citizens who have made efforts to bring lawsuits against abortion funds. Cain recently sent cease-and-desist letters to all the Texas abortion funds, accusing them of criminal conduct.
The lawsuit claims that the law violates the plaintiff’s rights to due process and free speech and asks the court to declare both this law and Texas’ older abortion law unenforceable.
“We are asking the courts today to stop the unconstitutional harassment of abortion funds by confirming S.B.8 cannot be used to silence donors with bogus threats,” Davis said in a statement. “More than that, we are asking the courts to stop the nightmare S.B.8 has created for Texans if they need abortion services.”
[…]
Last month, two abortion funds filed federal lawsuits against the anti-abortion advocacy groups that had threatened to bring lawsuits against them.
Recently, Cain claimed that the abortion funds could also face criminal charges under a Texas abortion statute that was declared unconstitutional by the U.S. Supreme Court in 1973. Cain claimed in his cease-and-desist letter that the law, which was never repealed by lawmakers, was recently reaffirmed when the state passed the new abortion law.
Davis’ lawsuit asks the judge to affirm that the old criminal statute is unenforceable and that the newer law is unconstitutional.
See here and here for more on the abortion funds’ lawsuits against two anti-abortion organizations plus two individuals. Those two individuals, plus a third person in addition to the twerp Briscoe Cain, are also defendants of this lawsuit, which you can download as a PDF here from the Quorum Report. Cain had been sent a letter accusing him of defamation after his claims that abortion funds and their donors were breaking the law; I do not know if there have been any further developments in that story.
The plaintiffs allege violations of the First and Fourteenth amendments, among other things. The claims about the First Amendment were interesting:
Because of Defendants’ threats concerning enforcement of S.B. 8 and the Criminal Abortion Ban against Texas abortion funds and their associates, Plaintiffs Sadler and Mehl intend to cease donating money to Texas abortion funds, including the Stigma Relief Fund, until the Court confirms that these laws are unenforceable because they violate the U.S. Constitution.
[…]
By threatening to chill abortion funds’ relationships with their donors, employees, and volunteers, Section 3 of S.B. 8 violates the freedom of expressive association protected by the First Amendment.
This leans into the SCOTUS holding that political contributions are free speech. I don’t doubt the zealots’ ability to double-speak their way out of this, but it’s a reasonable approach. Or at least I, a non-lawyer, think it is. I haven’t seen any commentary on Twitter, and neither Wendy Davis nor the Stigma Relief Fund have tweeted about this. We’ll see what happens. CNN has more.
HERE IT IS: CRAP SHOT LITIGATION
This is law prof fantasy in action: Suing pro-lifers under the federal Civil Rights Act to shut them up and tie their hands.
What’s wrong with that? – Lots
First, the private individuals named as defendants (with the exception of Briscoe Cain) aren’t government officials or employees, so even if they file suit, they wouldn’t be acting under color of state law. Section 1983 would have to be re-purposed to extend it to a new class of covered persons and new type of conduct: complaining and petitioning activity, which is generally considered to fall within First Amendment protection. Perhaps an abortion-friendly federal district judge will buy into that theory (which is being pushed by a number of pro-abortion legal scholars), but the Fifth Circuit won’t have it.
The text of 42 U.S.C. § 1983 expressly includes a requirement that the defendant acted under color of law. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001). A defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.
Although opponents routinely talk of SB8 having “deputized” private citizens, that language is not in the statute and the analogy with a deputy is inapt. All “any person” under SB8 can do is to initiate and try to prosecute a civil lawsuit. No defendant gets arrested. No bail needs to be posted. SB8 plaintiffs do not enjoy any special powers and must comply with the rules of court like other litigants. Adverse consequences, if any, would only be imposed by a judge. Enforcement by civil lawsuit is thus fundamentally distinct from criminal law enforcement. For the same reason, the bounty-hunter analogy is a stretch too. No fugitives are apprehended, dead or alive. No violence deployed.
Second, those who call for Section 1983 to be invoked against SB8 plaintiffs don’t even realize the fallacy they are falling prey to: If a would-be SB8 plaintiff can be “deemed” a state actor based on being engaged in civil enforcement activity through litigation, such plaintiff would then become a person expressly disqualified from doing so. After all, SB8 prohibits all public enforcement (as recently confirmed by the SCOTX on certified question from the Fifth Circuit), so how would that not then also apply to the “deemed” agents of the state, precluding them from proceeding as plaintiff in an SB8 action, should they have endeavored to file suit.
Their deemed “attorney general” or quasi prosecutor status would disqualify them because agents of the state may not engage in any sort of enforcement of SB8.
Third, assuming a court deems a private SB8 plaintiff to be the equivalent of a state official/officer and does not dismiss the lawsuit because the plaintiff would have ceased to be a person entitled to sue under SB8, how would he or she not be entitled to invoke qualified immunity, with reference to the Texas Legislature having authorized the civil cause of action, and SB8 not having yet been declared unconstitutional with binding effect on them? And how does the filing of a complaint or petition violate the defendant’s well-established constitutional right.
Where is the well-established right not to be named in a civil lawsuit?
Fourth, anyone can sue anyone at any time. The critical question is what happens after the petition (complaint) is filed. Nobody has protection against being sued, so why should abortion providers or funders or donors get special treatment by way of ex-ante lawsuit protection? Any serious adverse consequences for a defendant can only be imposed by a judge, and that requires application of the governing law to the facts. Nothing is automatic.
If the plaintiffs and their attorneys are right that SB8 is unconstitutional, no adverse judgment will be imposed (and no “bounty” awarded), or will be subject to being overturned for legal error on appeal. The defense of unconstitutionality can be asserted defensively, and no liability will be incurred if successful.
Fifth, the named defendants are private individuals (except for Cain), so they also have constitutional rights of which they cannot be deprived, especially not preemptively. Bringing a lawsuit is not wrongful conduct. Much rather, it is itself a form of petitioning protected by the constitution when private individuals or organizations do it. And a Rule 202 petition isn’t even a lawsuit proper, but a proceeding to investigate a claim authorized by statute.
Not to mention that the named defendants could change their minds about suing. Unlike officers of the state, they have no official duty to enforce the law, so there is no certainty as to whether they will or will not do in future. Nor can their conduct be predicted. Even if they are committed to acting as civil enforcers and have already announced their intent, they could change their minds and their plans, depending on what the SCOTUS does in the Dobbs case, or for any number of other reasons.
And as for Representative Cain, how does he not have immunity for his legislative acts and communications, such as press releases or cease-and-desist letters? And how is he a proper defendant to have a criminal abortion law declared unconstitutional? District attorneys prosecute criminal cases. Members of the Legislature don’t. Cain is a legislator.