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The Texas Supreme Court heard arguments Wednesday over whether a defamation case brought by several abortion funds against prominent anti-abortion activist Mark Lee Dickson should be dismissed.
In 2019, Waskom in Harrison County became the first Texas city to largely outlaw abortion and groups that assist it, like abortion funds, by adopting a Sanctuary Cities for the Unborn ordinance, following a campaign started by Dickson.
Then in 2020, three abortion funds — the Afiya Center, Texas Equal Access Fund and Lilith Fund for Reproductive Equity — sued Dickson, the director of Right to Life of East Texas, for defamation. Dickson had referred to the groups, which provide financial assistance to patients seeking abortions, as “criminal organizations” in statements on social media.
On Wednesday, Dickson’s attorney, Jonathan Mitchell, said his client’s statements were not defamatory because they were true.
“They are criminals because they have violated the criminal laws of Texas, which imposes felony criminal liability on any person who quote ‘furnishes the means for procuring an abortion,’” said Mitchell, a former solicitor general of Texas. He is also the architect behind the the state law that made performing an abortion illegal after fetal cardiac activity is detected, usually around six weeks of pregnancy.
After the U.S. Supreme Court overturned Roe v. Wade last summer, abortion is banned in most cases in Texas.
Mitchell argued that the defamation case should be dismissed under the Texas Citizens Participation Act, which protects individuals from strategic lawsuits against public participation.
In particular, Mitchell argued that Texas never repealed an 1857 law that punishes those “furnishing the means for procuring an abortion” and that Roe v. Wade, the 1973 landmark U.S. Supreme Court case that legalized abortion, didn’t make funding another person’s abortion a constitutional right.
“The court should say that these statements, far from being nondefamatory, are actually true to prevent future lawsuits like this from ever getting off the ground,” Mitchell argued. “This has been a campaign to intimidate constitutionally protected speech.”
Mitchell added that there are other grounds to dismiss the case, arguing that the abortion funds would have to prove Dickson made his statements with “reckless disregard for the truth.”
Beth Klussman, an attorney for the state of Texas, also spoke in support of Dickson. She argued that his statements were protected because they were opinions, similar to how opponents of the death penalty refer to executions carried out by the state as murder. Attorney Jennifer Ecklund, who represents the abortion funds, responded that Dickson’s language should be considered a factual statement because it was specific rather than about broad topics.
“We have a defendant who specifically said I am telling you as a fact that this is the state of the law and that these people are committing crimes,” she said. "That is a very singular set of facts.”
Ecklund added that the 1973 U.S. Supreme Court ruling made Texas’ pre-Roe law in question unconstitutional at the time, and therefore calling the abortion funds “criminal” infringes on their freedom of speech and association. And she said the groups have been complying with the law since the Dobbs decision.
“People are afraid to associate with them. People are afraid to donate. People are afraid to express their views for fear that they will also be called literal criminals who might be prosecuted based on things that they believe were totally constitutional,” Ecklund said.
The Texas Supreme Court is expected to deliver a ruling before the end of its current term in June 2023.
Disclosure: Afiya Center has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Correction, Oct. 27, 2022: A previous version of this story incorrectly stated a Texas abortion law dated back to 1897, due to an editing error. The law dates back to 1857.