The Texas Supreme Court is set to hear a motion to dismiss a case challenging the constitutionality of the Texas Heartbeat Act, on the grounds that the lawsuit was retaliatory. The underlying suit was filed by an abortion-aiding organization after a private citizen sought to depose them 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.
Should the case continue, it will be remanded back to a lower court to proceed on the merits of whether the Heartbeat Act is constitutional.
Background
In January 2022, Sadie Weldon—a private citizen of Jack County—filed a Rule 202 petition in the 271st District Court, 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.
The Lilith Fund is an organization that provides financial assistance to “people who need abortions in Texas.” The group is named after a female demon called “Lilith” from folklore.
Weldon is being represented by “pro-life superlawyer” Jonathan Mitchell, former Texas solicitor general and architect of the Heartbeat Act.
On June 24, 2022, the Dobbs decision overturned Roe v. Wade, returning abortion regulation authority to individual states. This triggered Texas’ House Bill 1280 to take legal effect on August 25, banning nearly all abortions from the point of conception, with severe criminal and civil penalties for providers enforced by the state.
Nevertheless, the Heartbeat Act still provides unique remedies for illegal abortions, allowing for private enforcement through civil actions. Should the law be ruled unconstitutional, these remedies could disappear.
The Lawsuit
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).
District Judge Brock Smith would ultimately deny Weldon’s Rule 202 petition in August 2022, meaning she could not take deposition against the Lilith Fund or Davé.
Judge Smith also denied Weldon’s motion to dismiss the Lilith Fund’s lawsuit in October 2022 “by operation of law,” after failing to rule on it within 30 days of the hearing date.
Weldon then decided not to pursue a lawsuit of her own, feeling that Jack County was not a favorable venue. Instead, she decided that “it would be better to allow someone who resides in a county with a more favorable district judge to sue the Lilith Fund for its admitted violations of the Texas Heartbeat Act.”
The Appeal
Weldon appealed Judge Smith’s decision to the Second Court of Appeals in Fort Worth.
The court 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.”
Weldon then appealed 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.
On November 21, 2025, the Supreme Court of Texas granted review. The issue before the Court is whether a lawsuit seeking a declaratory judgement over the constitutionality of a statute is subject to dismissal under the TCPA.
Should the Court rule in favor of Weldon, it could then rule on the motion to dismiss or remand the case back to the court of appeals to proceed on those grounds. Should the Court rule in favor of the Lilith Fund, the motion to dismiss would be denied and the case would be sent back to the trial court to proceed on the merits.
The Court is set to hear oral arguments on January 14.
If you or anyone you know has information regarding court cases, please contact our tip line: [email protected].
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