Federal judge dismisses Wendy Davis’ challenge to Texas abortion ban

A sign advertising an organization that offers services to abortion patients is on the wall at Whole Woman’s Health of Austin on Sept. 1, 2021, the effective date of one of the nation’s most restrictive abortion laws. Credit: Jordan Vonderhaar for The Texas Tribune

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.

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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.

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“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.”

“While yesterday’s ruling is disappointing, it won’t stop us from standing with abortion funds and others who support pregnant people,” said Rupali Sharma, senior counsel at the Lawyering Project, which represented Davis. “Showing up for pregnant people and supporting them in whatever decision they make about their pregnancy is nonnegotiable, and we will never give up on fighting for those fighting for them.”

Marva Sadler, one of the plaintiffs and senior director of clinical services at Whole Woman’s Health, said in a statement that this decision allows “anti-abortion politicians, lawmakers and judges [to] continue to sow fear and confusion in our communities.”

“However, we will remain steadfast in our efforts to continue to advocate for and challenge any law that prevents Texans from accessing the safe and patient-centered care that they deserve,” Sadler said.

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In October 2021, Pitman blocked the enforcement of S.B. 8, writing “this Court will not sanction one more day of this offensive deprivation of such an important right.” His order was immediately appealed, and the law has remained in effect since.

Pitman is also overseeing another lawsuit brought by abortion funds, in which the nonprofit groups seek assurances they will not be prosecuted for helping people access abortion in states where the procedure remains legal.

Pitman has not yet ruled on that challenge.

This article originally appeared in The Texas Tribune.