In 2020, three abortion funds — the Lilith Fund, Texas Equal Access Fund, and the Afiya Center — sued Mark Lee Dickson, founder of the “Sanctuary Cities for the Unborn” initiative, after he encouraged cities to pass an ordinance that declared the abortion funds “criminal organizations.” Their lawsuits also accuse Dickson of defaming them in social media posts that call abortion murder.
The Lilith Fund sued him in Travis County and the latter two groups sued him in Dallas County, but since both cases concern the same issue, the Supreme Court of Texas consolidated them when it agreed to hear them on Friday.
The “Sanctuary Cities for the Unborn” initiative began when the East Texas town of Waskom passed an ordinance banning abortion in city limits in 2019. Since then, the movement has swelled to include 44 cities in Texas and a handful in other states.
Early versions of the ordinance, passed in Waskom and elsewhere, specifically listed the three funds and several other abortion providers and supporters in their texts, declaring them “criminal organizations.” Due to a federal lawsuit against some of these cities for this language, those ordinances have since been amended to remove the “criminal organizations” section, though the bans on abortion itself still remain effective.
The Lilith Fund argues that these declarations, along with similar remarks Dickson made on social media, are defamatory.
To count as defamation, a statement must be a false factual claim. Among other arguments, the Lilith Fund says Dickson’s accusations are false because Roe v. Wade legalized abortion and the ordinances forbid direct punishment of abortion until Roe is overturned.
Statements of opinion or hyperbole do not count as defamation. The Lilith Fund claims that the ordinances, which Dickson claims to have written, are meant to be taken as literal statements of fact.
“Since there is no doubt that a ‘reasonable person’ reading Respondents’ statements in their full context would believe Respondents intended their words to be taken literally, the Court of Appeals was wrong to hold that Respondents’ statements were statements of opinion or hyperbole,” the Lilith Fund’s petition reads.
Meanwhile, Dickson argues that abortion remains criminal under Texas law and the local ordinances even after Roe effectively blocked governments from directly punishing abortion. As a result, he claims, it is still accurate to call abortion “criminal.”
Importantly, Dickson lost against Texas Equal Access Fund and Afiya Center at the Dallas-based Fifth Court of Appeals but won a favorable ruling over Lilith Fund at the Amarillo-based Seventh Court of Appeals. This clash of opinion between the state appellate courts is the main reason why both parties asked the Supreme Court of Texas to take up the case.
In his petition to the Supreme Court of Texas, Dickson says the Fifth Court of Appeals erred when it said Texas law does not include abortions in its definition of “murder.”
“The court of appeals’ opinion, however, says that all abortions are excluded from the statutory definition of murder, which misleads readers into thinking that abortions performed in violation of SB 8 (or any other provision of Texas law) are not criminal acts of murder — even though the Penal Code unambiguously states that they are,” Dickson’s petition reads.
However, in addition to his claim that the state’s unrepealed penal code continues to criminalize abortion, Dickson also says the declarations of “murder” in the ordinances and his social media posts can be interpreted as hyperbole.
“Statements that call abortion ‘murder’ are quintessential examples of rhetorical hyperbole protected by the First Amendment, and subjecting someone to lawsuits for these statements is an affront to the Constitution,” he argues.
The Lilith Fund emphasizes that its lawsuit only applies to the consistent accusations of murder and criminal activity found in the ordinances and Dickson’s own speech, not more common comparisons between abortion and murder at large.
The landscape of the case may change drastically soon. Before the Texas Supreme Court even sets a date for oral argument in the coming weeks, the U.S. Supreme Court may overturn Roe v. Wade, triggering a statewide abortion ban.
Embedded below is an interview with Mark Lee Dickson regarding the local abortion ordinances and litigation with the funds and Planned Parenthood.
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