Alas.
Wendy Davis
A federal judge has dismissed a narrow challenge to Texas’ ban on abortions after about six weeks of pregnancy. The lawsuit was brought by former State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill.
The lawsuit, filed in April, challenges the 2021 Texas law known as Senate Bill 8, which allows private citizens to sue anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.
The law is “blatantly unconstitutional” and “make[s] a mockery of the federal courts,” Davis’ lawsuit alleged.
The law was designed to be difficult to challenge in court, since no government entities are involved in enforcement. Abortion advocates have struggled to find a way to block the law that doesn’t require them to first violate it and risk a costly civil lawsuit.
In this case, Davis and others sued a handful of anti-abortion activists who have threatened to bring civil lawsuits against abortion funds that help Texans access abortion out-of-state. These threats contributed to a “chilling effect” on the funds’ operations, and individuals have lost their ability to freely associate with like-minded individuals, the suit said.
The original complaint also named state Rep. Briscoe Cain, R-Deer Park, who sent cease-and-desist letters to abortion funds, threatening criminal prosecution under the state’s abortion ban. An amended complaint, filed in August, removed Cain from the list of defendants.
U.S. District Judge Robert Pitman dismissed the suit Wednesday, finding that Davis and the other plaintiffs “have not articulated a credible, imminent threat that can be attributed to Defendants.”
The defendants have filed court petitions seeking to depose leaders from two other abortion funds to learn about possible prohibited abortions. But as part of this lawsuit, the defendants signed sworn declarations saying they did not intend to sue Davis or the other plaintiffs.
“If anything, the specificity of these petitions lessens the threats’ immediacy,” Pitman wrote. “In short, Plaintiffs have not sufficiently distinguished these threats and the sworn statements disavowing them to show an injury.”
See here for the background and here for a copy of the order. It seems that the original SCOTUS ruling on SB8 means that there’s not a clear avenue for being proactive against the possibility of being sued under that cursed law. To quote from the ruling, “S.B. 8 was designed to evade judicial review so that a plaintiff likely could only challenge the law by subjecting themselves to liability.” Because these defendants have made sworn statements that they won’t sue these specific plaintiffs, there’s nothing to adjudicate and thus the suit is dismissed for lack of standing. Note, as Judge Pitman does, that this remains the case even though two of the named defendants have taken legal action against other abortion funds. You can’t prevent someone from suing you under this law, you can only react if they do. What a world we live in now.