Joining the Austin Court of Appeals, the Fort Worth Court of Appeals has held that the Texas Citizens Participation Act (Ch. 27, CPRC) cannot be used to shut down an abortion fund’s constitutional challenge to SB 8, the so-called “Hearbeat Act.”
As you may recall, Sadie Weldon v. The Lilith Fund for Reproductive Equity (No. 02-22-00413-CV; March 7, 2024) arose in the context of a Rule 202 petition requesting a pre-suit deposition of the Lilith Fund’s deputy director in anticipation of a possible SB 8 action against the fund for aiding and abetting an illegal abortion. While the Rule 202 petition was pending, the fund filed a declaratory judgment action in the same court, seeking a declaration that SB 8 is unconstitutional and an injunction against further judicial proceedings based on the statute. Plaintiff moved to dismiss under the TCPA. The trial court denied the Rule 202 petition but did not rule on the TCPA motion, allowing it to be overruled by operation of law. Plaintiff filed an interlocutory appeal.
In an opinion by Justice Kerr, the court affirmed. Following the Austin Court of Appeals’ decision in Tex. Right to Life v. Van Stean (No. 03-21-00650-CV; May 26, 2023), the court held that the TCPA does not apply to the fund’s declaratory judgment action. In short, the court reasoned that the action was filed for the purpose of determining the fund’s rights and obligations under the statute, not in response to a legal action (the Rule 202 petition) or anything Texas Right to Life was saying about the fund on its website. “As the Austin court explained,” Justice Kerr wrote, “the Van Stean and Planned Parenthood appellees were [] not seeking to limit TRL’s ‘constitutional rights . . . to petition, speakl freely, associate freely, an dotherwise participate in government to the maximum extent permitted by law’” (citations omitted). Moreover, “if the TCPA were interpreted to forbid the appellees from seeking an answer to SB 8’s constitutionality, that interpretation would ‘undermine the [Legislature’s] clear directive that the TCPA ‘does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions,’ such as the Declaratory Judgment Act” (citations omitted).
We have stated our opinion that SB 8 is unconstitutional on other occasions, so we will not rehearse here the arguments we made on that subject in amicus submissions in both this case and Van Stean (for which a petition for review has been filed). As Justice Kerr sensibly observed, SB 8 was an attempt to get around Roe v. Wade. Now that Roe famously sleeps with the fishes, the question of SB 8’s constitutionality seems more of an academic exercise, but a critically important one, nonetheless. We would prefer to see the Legislature simply declare victory and moot the issue by repealing the statute and refraining from copying its no-injury standing provision into other new causes of action. Until then, however, the litigation will drag on.
