Texas’ Supreme Court determined a lawsuit challenging the constitutionality of the Texas Heartbeat Act is retaliatory. The underlying suit was filed by an abortion-aiding organization after a private citizen sought to depose its leadership for admittedly violating the statute.
The citizen claims the lawsuit violated her first amendment rights under the Texas Citizens Participation Act, a law designed to protect Texans from retaliatory lawsuits that are intended to silence them on matters of public concern.
A lower court must now determine whether the case is subject to dismissal.
Background
As previously reported, Sadie Weldon—a private citizen of Jack County—filed a Rule 202 petition in the 271st District Court in January 2022, seeking to depose the Lilith Fund and its deputy director, Neesha Davé, for violating the Heartbeat Act.
Passed in 2021, the Heartbeat Act banned nearly all abortions once a heartbeat can be detected. The law is enforced through civil litigation from private citizens, rather than from state officials or through criminal sanctions.
Weldon was hoping to gather evidence before filing a lawsuit against the group for aiding or abetting abortions in violation of the Texas Heartbeat Act—something the Lilith Fund had already admitted to in a 2021 sworn affidavit from a separate court case.
On March 15, 2022, the Lilith Fund filed a counter-suit against Weldon, seeking “a declaration that the Heartbeat Act is unconstitutional and an injunction prohibiting Weldon from deposing Davé or suing the Lilith Fund.”
Weldon then filed a motion to dismiss the Lilith Fund’s lawsuit, claiming it was retaliatory and therefore violated her rights under the Texas Citizens Participation Act (TCPA)—a First Amendment claim.
Texas Citizens Participation Act
District Judge Brock Smith denied Weldon’s motion to dismiss in October 2022 “by operation of law,” after failing to rule on it within 30 days of the hearing date.
Weldon appealed to the Second Court of Appeals in Fort Worth, which also ruled in favor of the Lilith Fund—holding that Weldon’s claims under the TCPA did not apply because the Lilith Fund did not seek to prohibit Weldon from engaging in “constitutionally protected activity.”
The TCPA dismissal procedure requires a three-step decisional process.
First, the defendant seeking dismissal must demonstrate that the legal action is “based on or is in response to” the defendant’s exercise of the right of speech, petition, or association.
If the defendant succeeds at step one, the burden shifts to the plaintiff for step two. Plaintiffs must present “clear and specific evidence” that they have enough evidence for each of their claims to potentially win at trial.
If successful, step three allows the defendant to establish an affirmative defense or other legal grounds on which lawsuit should be dismissed.
The only issue the court of appeals reached was step one—finding the TCPA did not apply because Weldon was not engaging in a constitutionally protected activity.
Weldon appealed this decision to the Supreme Court of Texas, arguing that the TCPA applies because the Lilith Fund’s suit was “based on or in response to Weldon’s petition for a pre-suit deposition,” and that the right to petition is a constitutionally protected activity.
Texas’ Supreme Court granted review and heard oral arguments on January 14.
The Ruling
Last week, the Court ruled in Weldon’s favor, finding that the Lilith Fund filed the lawsuit in response to Weldon’s Rule 2020 petition—which was a constitutionally protected activity.
“We hold that the Fund’s legal action is based on or in response to Weldon’s exercise of her right to petition, so the TCPA applies,” reads the opinion.
“When a TCPA-protected activity results in a legal action seeking to enjoin that activity, the legal action is based on or in response to the protected activity. And the remainder of the Fund’s petition and the statements by its counsel confirm that its requests to declare [the Heartbeat Act] unconstitutional are factually predicated on or in reaction to Weldon’s protected Rule 202 petition.”
The Court reversed the court of appeals’ judgement, remanding the case for the lower court to consider steps two and three—which it did not reach.
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