On remand from the Texas Supreme Court, the Austin Court of Appeals has held that patients, physicians, and abortion funds have standing to challenge the constitutionality of the Texas Heartbeat Act, SB 8. The court further affirmed the MDL pretrial court’s order denying Texas Right to Life’s motion to dismiss the suit under the Texas Citizens Participation Act. It appears that the remaining barriers to SCOTX’s consideration of the merits have finally been cleared away.
The central issue in Texas Right to Life and John Seago v. Allison Van Stean, et al. (No. 03-21-00650-CV; January 16, 2026) is whether the no-injury cause of action enforcement mechanism is constitutional. The MDL pretrial judge, Judge David Peeples, ruled that the Van Stean parties had standing, SB 8’s enforcement mechanism violated the Texas Constitution and that the TCPA didn’t apply. SCOTX heard and sent the case back to the court of appeals to determine jurisdiction prior to considering the TCPA claim.
In an opinion by Justice Triana, the court of appeals affirmed. The court, consequently, began with Texas Right to Life’s plea to the jurisdiction based on lack of standing. Texas Right to Life argued that the Van Stean parties lacked standing because they had no injury in fact (no abortions were being performed in Texas), any possible injury could not be traced to Texas Right to Life, and that any alleged injury cannot be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692 (Tex. 2021). The Van Stean parties argued that they suffered an injury in fact when Texas Right to Life itself announced in the press and on its social media their intention to sue abortion providers and solicited informants for that purpose. They also introduced evidence of thousands of hits on the solicitation. The court accepted this argument, holding that the Van Stean parties had “sufficiently alleged in their pleadings an injury in fact—threatened litigation by Texas Right to Life—that is concrete and particularized and actual and imminent.
As to traceability, Texas Right to Life argued that since it disavowed any intention to sue providers and others who complied with SB 8, any alleged injury suffered by the Van Stean parties could not be traceable to them. But, as the court pointed out, it “failed to unequivocally attest that they would not sue the [Van Stean parties] were they to engage in conduct that violates SB 8.” In effect, Texas Right to Life’s threat of litigation “for violations or perceived violations” aimed at the parties’ “day-to-day operations, activities, and professions” was real and traceable directly to Texas Right to Life. As the court put it, “[s]tating ‘we won’t sue you as long as you obey the law’ is still a threat of litigation”—particularly when a violation of the law is in the eye of the private enforcer. Moving to the third prong of the standing test, the court observed that the Van Stean parties were not seeking to enjoin Texas Right to Life from a violation of the law, but from enforcing an unconstitutional statute. Whether Texas Right to Life had a statutory cause of action or was engaging in constitutionally protected speech when it advertised for lawsuits was beside the point. Additionally, the court went on, “[t]he law is clear that litigants are not required to expose themselves to penalties before seeking relief to prevent the enforcement of a statute,” whether formally by a state actor or under delegated authority from a state actor.
Texas Right to Life argued that even if the Van Stean parties got their injunction, it wouldn’t redress their alleged injuries because they could still be sued by everybody else. The Van Stean parties responded that they weren’t talking about everybody else, but specifically about Texas Right to Life, which threatened to sue them. The parties have a live dispute that can be redressed by declaratory and injunctive relief. The Van Stean parties met the test for constitutional standing. Texas Right to Life alternatively asserted that the Van Stean parties’ lawsuit wasn’t ripe because of the uncertainty over whether it would ever actually bring an SB 8 lawsuit. The court didn’t buy this for the same reason it rejected the standing argument. Texas Right to Life invoked the threat of litigation aimed at the Van Stean parties’ everyday operations and professions and actively sought potential plaintiffs. There was nothing abstract or remote about it. And when SCOTUS overruled Roe, it didn’t moot the issue because, as Judge Peeples wrote, this case was out “whether SB 8’s civil procedures are constitutional,” not whether abortion should be legal.
Turning to the TCPA, the court held that it didn’t apply. Texas Right to Life asserted that everything on their website and social media soliciting informants and potential claimants was constitutionally protected. No doubt, responded the Van Stean parties, but that’s not what the lawsuit is about. They didn’t challenge Texas Right to Life’s constitutional rights to speech, petition, and association, but its right to enforce an unconstitutional statute. In other words, Texas Right to Life remains free to say anything it wants to anybody. It just shouldn’t be able to sue the Van Stean parties using an unconstitutional procedural mechanism, and all the Van Stean parties are asking for is a declaration of their constitutional rights under the UDJA. The court thus affirmed Judge Peeples’ ruling that the TCPA didn’t apply to Van Stean’s lawsuit.
Now that the standing and TCPA smokescreen has cleared, SCOTX will have the happy task of facing up to SB 8 once and for all. We have left no question about how we feel about it. No injury causes of action are anathema to business and have the potential to erase every civil justice reform achievement in the past 40 years. If anyone can sue anybody for statutory damages without proof of injury or causation, it will herald the end of the civil justice system as we know it. We’ve already seen the SB 8 poison spread to providers of certain medicines, and it is poised to go wherever the powers that be want it to go next. Plastic manufacturers for products containing PFAS? Energy producers for environmental contamination? Food manufacturers for the use of certain additives and dyes? Restaurants for serving certain foods? Health care providers for end-of-life decisions? We should observe that other states have taken note of SB 8, and some has already enacted copycat “bounty hunter” statutes. Notable examples include California, which adapted SB 8 to the firearms industry, and Illinois, which doesn’t require a consumer to show actual injury to sue for alleged violations of its biometric identifier privacy law. We need no further evidence that states are paying attention. They can and will retaliate.
As both SCOTUS and SCOTX have repeatedly pointed out, standing is a constitutional separation of powers issue. Courts resolve justiciable cases controversies between parties. Claimants must have to a concrete, particularized injury in fact. That injury has to be fairly traceable to the conduct of the adverse party. And the court has to have the power and capacity to redress the alleged harm. This is Constitutional Law 101. No injury causes of action frustrate these purposes and transfer social and business regulation to the courts, rather than to the legislative and administrative processes where they belong. As far as SB 8 is concerned, the Legislature has prohibited abortions. Full stop. To allow SB 8 to hang around as a stick to beat somebody with and, more importantly, as a template for everyone else to follow who wants to beat somebody with the same stick, would upend the constitutional order and subject businesses and health care providers to unlimited exposure based on partisan political whim.
What Samwise Gamgee says in The Lord of the Rings about the Ring of Power applies equally to SB 8 and statutes like it: “Then let us be rid of it … once and for all.”
