Federal Judge Denies Wendy Davis’ Complaint Against Texas Abortion Ban

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A federal judge has dismissed a narrow challenge to Texas’ ban on abortion after six weeks of pregnancy. The lawsuit was filed by former state Rep. Wendy Davis, best known for her 13-hour filibuster of the 2013 abortion bill.

[Texas law banning abortion as early as six weeks goes into effect as the U.S. Supreme Court takes no action]

The lawsuit, filed in April, challenges a 2021 Texas law known as Senate Bill 8, which allows private citizens to sue anyone who “assists or abets” an abortion after a fetal heart activity is detected, typically as early as the sixth week of pregnancy.

The law is “clearly unconstitutional” and “enforces[s] mockery of federal courts,” Davis said in the lawsuit.

The law was designed in such a way that it would be difficult to challenge it in court, since no state bodies are involved in law enforcement. Abortion advocates have struggled to find a way to block the law that doesn’t require them to first break it and risk a costly civil lawsuit.

In the case, Davis and others sued a handful of anti-abortion activists who threatened to file civil lawsuits against abortion funds that help Texans get abortions out of state. These threats have had a “chilling effect” on the foundations’ activities, and people have lost the ability to communicate freely with like-minded people, the lawsuit says.

The original complaint also mentions Rep. Briscoe Kane, R-Deer Park, who sent cease and desist letters to abortion funds, threatening prosecution under the state’s ban on abortion. An amended complaint filed in August removed Cain from the list of defendants.

U.S. District Judge Robert Pitman on Wednesday dismissed the lawsuit, finding that Davis and the other plaintiffs “failed to formulate a plausible, imminent threat that can be attributed to the Defendants.”

Defendants filed motions with the court to remove the heads of two other abortion funds in order to learn about possible illegal abortions. But as part of that lawsuit, the defendants signed sworn statements saying they did not intend to sue Davis or other plaintiffs.

“If anything, the specificity of these petitions reduces the immediate relevance of the threats,” Pitman wrote. “In short, plaintiffs do not sufficiently distinguish between these threats and sworn statements denying them to show trauma.”

“While yesterday’s decision is disappointing, it will not stop us from supporting abortion funds and other organizations that support pregnancy,” said Rupali Sharma, senior counsel at the Lawyering Project, representing Davis. “Showing up for pregnant women and supporting them in whatever decision they make regarding their pregnancy is non-negotiable and we will never stop fighting for those who fight for them.”

In October 2021, Pitman blocked the execution of SB 8, writing that “this court will not authorize another day of this abusive deprivation of such an important right.” His order was immediately appealed, and the law has remained in effect ever since.

Pitman is also overseeing another lawsuit filed by abortion funds in which non-profit groups are seeking assurances that they will not be prosecuted for helping people access abortions in states where the procedure remains legal.

Pitman has not yet made a decision on this challenge.