The Texas Supreme Court heard oral arguments Wednesday in Sadie Weldon v. The Lilith Fund, a case that pertains to Senate Bill 8, the 2021 law that banned abortions after around six weeks.
The landscape of abortion law has changed since SB 8 — also called the Texas Heartbeat Act — passed, with Texas enacting more comprehensive abortion bans after the U.S. Supreme Court overturned Roe v. Wade in 2022. But SB 8’s novel “bounty hunter” provision, which allows private citizens to sue anyone who “aids or abets” an abortion after cardiac activity is detected in a fetus, has continued to drive legal questions.
The Texas Supreme court’s decision in Sadie Weldon v. The Lilith Fund would not decide the constitutionality of SB 8, though challenges to the law still persist. It could, however, impact whether a challenge to the law has a path forward.
History of the case
The case has wound through the courts since 2022, when Weldon, a private Texas citizen, sought to depose Neesha Davé, the deputy director of the Lilith Fund, a nonprofit that provides support to people seeking abortions. In a sworn affidavit for a separate legal proceeding, Davé acknowledged that the Lilith Fund had helped at least one Texas woman pursue an abortion, a potential violation of SB 8. Weldon filed a Rule 202 petition to try to glean more information about the potential violation without officially filing a lawsuit.
“We wanted to find out exactly who was involved, the extent of the violation and what else we could investigate,” said Jonathan Mitchell, Weldon’s attorney, in arguments presented Wednesday. Mitchell, who was a key figure in the drafting of SB 8, has represented a number of clients filing Rule 202 petitions pertaining to suspected abortion law violations.
However, the Lilith Fund countersued Weldon, asking a judge to both declare SB 8 unconstitutional and prevent Weldon from suing the organization under the statute. Weldon asked the courts to dismiss that countersuit, invoking the Texas Citizens Participation Act — a law intended to prevent retaliatory suits aimed at silencing “matters of public concern.” A Jack County court and the Second Court of Appeals ruled that the TCPA does not apply to declaratory judgment claims of this nature.
Now, the Texas Supreme Court must decide whether to uphold those rulings. If the high court rules against Weldon, it could result in the case being sent back to a lower court to decide the merits of the Lilith Fund’s request for SB 8 to be declared unconstitutional.
The Jack County district judge also denied Weldon’s 202 petition, and Weldon chose not to pursue the petition further — meaning it’s only the Lilith Fund’s countersuit and Weldon’s motion to dismiss it that remain active.
Supreme Court arguments
On Wednesday, Texas Supreme Court justices pressed attorneys on whether the case is effectively moot now that Weldon has stopped pursuing the 202 petition and says she has no intention to pursue a future lawsuit against the Lilith Fund. Furthermore, the statute of limitations for any lawsuit related to an SB 8 violation in 2021 has expired.
Mitchell said the case is not moot, in part because both sides are still asking to be awarded attorneys’ fees. He argued that the plaintiffs hoped to use this factor to continue pushing a lower court to rule on the constitutionality of SB 8.
“They’re going to try to say the Texas Heartbeat Act is unconstitutional if this case is remanded,” Mitchell said, adding that he believed the plaintiffs would run into other procedural hurdles at that stage.
“So all of those important, very difficult, weighty questions, the dog is being wagged by the tail of attorney’s fees?” Justice Evan Young asked.
“I think yes … in terms of what’s at stake ultimately in this lawsuit,” Mitchell said.
William J. Boyce, the attorney representing the Lilith Fund, also advocated for the case's continued relevance, pointing out the potential for a subsequent suit to be filed against the fund. He also said the novel civil enforcement mechanism of SB 8 created uncertainty about how laws like the TCPA apply.
“It's unprecedented the way that SB 8 operates to take all state actors out of it and turn it into a private enforcement mechanism,” Boyce said. "That's what's putting us into this awkward position of trying to reconcile this very unique, unprecedented structure with the TCPA.”
Mitchell, however, argued that the issue of investigating whether an abortion law had been violated was a matter of public concern, as per the TCPA, regardless of SB 8’s enforcement mechanism.
