Now, former Democratic state Senator Wendy Davis has filed a new lawsuit in federal district court challenging both the new act and a separate law, dormant but unrepealed, that prohibits “furnishing the means to procure” abortions.
Passed by state lawmakers last year as Senate Bill (SB) 8, the Texas Heartbeat Act bans abortions after cardiac activity can be detected and went into effect last September, though it contains a unique provision that allows enforcement through private lawsuits but does not permit state officials to enforce the ban.
One federal lawsuit from abortion providers challenged state agencies, the attorney general, a state judge, a state clerk, and a single pro-life activist, while the Biden administration sued the State of Texas.
Both cases made their way to the U.S. Supreme Court, but justices dismissed the administration’s lawsuit and most of the defendants listed on the abortion providers’ suit.
The lawsuit from Davis — which includes the Stigma Relief Fund and two of the abortion fund’s board members as plaintiffs — echoes the core complaints of the other lawsuit but directs its challenge toward four individual defendants.
Davis’ lawsuit asserts that one defendant “intends to sue abortion funds that pay for abortions in violation of S.B. 8,” that two other defendants have already “commenced legal proceedings” under SB 8, and that the fourth defendant — state Rep. Briscoe Cain (R-Deer Park) — has “sent cease-and-desist letters on his official letterhead to Texas abortion funds” and has publicly said that such funds “are subject to prosecution” under existing state law.
“Defendants’ public threats against abortion funds and their associates have had a chilling effect on some of those organizations and individuals, including the other Plaintiffs, which intrudes upn Ms. Davis’ ability to associate with like-minded people to express her views and achieve her advocacy goals,” states the complaint.
The lawsuit claims that the threats of lawsuits from individuals “violates the freedom of expressive association protected by the First Amendment.”
It further argues, as other challenges against SB 8 have, that the abortion ban “violates the Due Process Clause of the Fourteenth Amendment.”
While the lawsuit does not expressly seek injunctive relief, it asks the court for a declaratory judgment that the Texas Heartbeat Act is unconstitutional and cannot be enforced.
The lawsuit also seeks a judgment of unconstitutionality for a much older law in the Texas Penal Code, Article 4512.2, that criminalizes “furnish[ing] the means for procuring an abortion.” This line comes from the same chapter of the penal code that includes the total criminal abortion ban at the center of Roe v. Wade. Davis refers to this chapter as the “Criminal Abortion Ban” in her lawsuit.
Davis’s lawsuit points to a legislative finding included in SB 8 which noted that “the State of Texas never repealed, either expressly or by implication, the state statutes enacted before the ruling in Roe v. Wade [. . .] that prohibit and criminalize abortion unless the mother’s life is in danger.”
In a letter from Cain cited in the lawsuit, the state representative stated, “Courts do not have the ability or the authority to ‘strike down’ or formally revoke statutes when pronouncing them unconstitutional.”
Cain contended that “the severability provisions of Texas law allow the state’s pre-Roe abortion statutes to be enforced in situations that do not violate the constitutional rights of abortion patients,” meaning that the old state law “remains fully enforceable against abortion funds that pay for abortions performed in Texas, as well as their donors.”
“[I]f you and your clients want to adhere to your delusional belief that article 4512.2 no longer exists as the law of Texas, then we welcome the opportunity to have the judiciary set you straight,” wrote Cain.
Davis and her fellow plaintiffs, in turn, included the matter in their lawsuit.
The complaint says that because of the “threats concerning enforcement of S.B. 8 and the Criminal Abortion Ban,” two of the plaintiffs “intend to cease donating money to Texas abortion funds [. . .] until the Court confirms that these laws are unenforceable because they violate the U.S. Constitution.”
Beyond declaring SB 8 unconstitutional, the lawsuit also asks the court to enter “a declaratory judgment that the Criminal Abortion Ban cannot be lawfully enforced because the U.S. Supreme Court held that it was unconstitutional.”
Cain, though, stands by his previous position.
“The law of Texas is clear: It is a crime to pay for another person’s abortion, punishable by 2 to 5 years imprisonment,” said Cain in a statement after the lawsuit was filed. “Texas abortions funds and their donors are committing criminal acts by paying for abortions in Texas.”
“We will enact legislation next session to ensure that these lawbreakers are prosecuted, and we will authorize district attorneys from throughout the state to prosecute abortion crimes when the local DA is unwilling to do so,” said Cain.
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Daniel Friend is the Marketing and Media Manager for The Texan. After graduating with a double-major in Political Science and Humanities, he wrote for The Texan as a reporter through June 2022. In his spare time, you're likely to find him working on The Testimony of Calvin Lewis, an Abolition of Man-inspired novel and theatrical podcast.