Supreme Court of Texas
══════════
No. 21-0978
══════════
The Lilith Fund for Reproductive Equity,
Petitioner,
v.
Mark Lee Dickson and Right to Life East Texas,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════
~ consolidated for oral argument with ~
══════════
No. 21-1039
══════════
Mark Lee Dickson and Right to Life East Texas,
Petitioners,
v.
The Afiya Center and Texas Equal Access Fund,
Respondents
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════
JUSTICE DEVINE, joined by Justice Blacklock, concurring.
Throughout the history of this great State, its people—through
their elected representatives—have enacted laws that both support the
State’s vital and legitimate “interest in protecting fetal life” and regard
the fetus as having “the most basic human right—to live[.]” 1 In 1854,
within the first decade after joining the Union, Texas criminalized
abortion. 2 Since then, the Legislature has continuously kept laws
protecting fetal life in the law books, including criminal prohibitions on
both procuring and furnishing the means of procuring an abortion. 3
In 1973, however, the Supreme Court of the United States
deemed the abortion laws in the Texas Penal Code unconstitutional “as
a unit” in Roe v. Wade. 4 Shortly after Roe, the Legislature moved the
abortion laws from the Texas Penal Code to the Texas Revised Civil
1 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2261 (2022);
see History of Abortion Laws, TEX. STATE LAW LIBRARY,
https://guides.sll.texas.gov/abortion-laws/history-of-abortion-laws#s-lg-box-
wrapper-34134160 (last visited Feb. 21, 2023) (providing a timeline of Texas
abortion laws).
2See Act effective May 1, 1854, 5th Leg., R.S., ch. 49, § 1, 1854 Tex.
Gen. Laws 1502, 1502.
3 See TEX. REV. CIV. STAT. arts. 4512.1–.6; TEX. PENAL CODE
arts. 1191–1196 (1925); TEX. PENAL CODE arts. 641–646 (1895); TEX. PENAL
CODE arts. 1071–1076 (1907); TEX. PENAL CODE arts. 536–541 (1879); TEX.
PENAL CODE arts. 531–536 (1856).
4 410 U.S. 113, 117, 166 (1973) (“The Texas statutes that concern us
here are Arts. 1191-1194 and 1196 of the State’s Penal Code . . . . Our
conclusion that Art. 1196 is unconstitutional means, of course, that the Texas
abortion statutes, as a unit, must fall. . . . [T]he present criminal abortion
statutes of [Texas] are unconstitutional.”), overruled by Dobbs, 142 S. Ct. at
2242.
2
Statutes, 5 expressly noting that “[t]he purpose of this section is to
provide for transfer of articles . . . which are not repealed by this Act to
the civil statutes . . . without reenactment and without altering the
meaning or effect of the unrepealed articles[.]” 6 And less than two years
ago, the Legislature issued a finding that “the State of Texas never
repealed, either expressly or by implication, the state statutes enacted
before the ruling in Roe[] that prohibit and criminalize abortion[.]” 7
Roe was wrong—indeed, “egregiously wrong”—and “deeply
damaging” from the day it was decided. 8 Since that time, it has been
“on a collision course with the Constitution.” 9 At long last, the Supreme
Court of the United States, in Dobbs v. Jackson Women’s Health
Organization, has finally overruled Roe, returning “the authority to
regulate abortion . . . to the people and their elected representatives.” 10
Correctly recognizing Roe’s illegitimacy—although Roe had not
yet been overruled at that time—Mark Lee Dickson and Right to Life
East Texas (RLET) publicly described The Afiya Center, Texas Equal
Access Fund, and The Lilith Fund for Reproductive Equity (collectively,
the Funds) as “criminal organizations” for funding abortions. When the
Funds sued for defamation, Dickson and RLET moved to dismiss the
5 See TEX. REV. CIV. STAT. arts. 4512.1–.6.
See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 5(a), 1973 Tex. Gen.
6
Laws 883, 995, 996e (eff. Jan. 1, 1974).
7Act of May 6, 2021, 87th Leg., R.S., ch. 62, § 2, 2021 Tex. Sess. Laws
125, 125.
8 Dobbs, 142 S. Ct. at 2265.
9 Id.
10 Id. at 2279.
3
Funds’ lawsuits under the Texas Citizens Participation Act (TCPA), 11
asserting that the alleged defamatory statements were true as a matter
of law, among other arguments. 12 Specifically, Dickson and RLET
argued that because the statutory provision criminalizing the funding
of abortion remained on the books in Texas, 13 it is indisputably true that
the Funds are criminal organizations under Texas law, even if Roe’s
erroneous holding prevented enforcement of the law when the
challenged statements were made.
Although the Funds’ conduct would have been considered
criminal under Texas law but for “Roe’s abuse of judicial authority,” 14
we need not decide whether it is actually true that such conduct was
criminal before the Supreme Court overruled Roe. As the Court holds,
a reasonable person would perceive Dickson and RLET’s statements as
opinions—indeed, advocacy—about what the law is and should be, not
as verifiable facts. 15
I join in full the Court’s well-reasoned and thorough opinion. But
it is regrettable that it took the courts of our State so long to dismiss the
11 See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
12 See id. § 27.005(d) (“[T]he court shall dismiss a legal action against
the moving party if the moving party establishes an affirmative defense or
other grounds on which the moving party is entitled to judgment as a matter
of law.”); D Mag. Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 441 (Tex. 2017)
(“[T]ruth is generally a defense to defamation[.]”).
13See TEX. REV. CIV. STAT. art. 4512.2 (“Whoever furnishes the means
for procuring an abortion knowing the purpose intended is guilty as an
accomplice.”).
14 Dobbs, 142 S. Ct. at 2243.
15 Ante at 3, 23-24, 27.
4
Funds’ obviously meritless lawsuits that were filed to silence their
political adversaries. Defamation law must never become a weapon of
intimidation against opponents, no matter the party or the side of a
political issue. The TCPA exists to dispose of lawsuits designed to
intimidate and silence those who exercise their constitutional right to
speak freely. 16 To “deter the party who brought the legal action from
bringing similar actions,” the TCPA provides for both sanctions and
judicial “findings regarding whether the legal action was brought to
deter or prevent the moving party from exercising constitutional rights
and is brought for an improper purpose, including to harass . . . .” 17
Although the TCPA does not authorize an appellate court to impose
these sanctions in the first instance, the district courts on remand, if
called upon, will bear the responsibility to use the TCPA remedies to
deter these plaintiffs and any others, regardless of viewpoint, who would
misuse litigation to intimidate their political opponents.
I also write separately to emphasize that although Roe
egregiously declared the Texas abortion laws “as a unit”
unconstitutional, it did not—and could not—remove those prohibitions
from the Texas law books. And because Roe has been overruled, these
laws are now enforceable. As this Court has explained, “We do not deny
that laws declared unconstitutional by a court remain in the books until
16 See TEX. CIV. PRAC. & REM. CODE § 27.002 (“The purpose of this
chapter is to encourage and safeguard the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits for demonstrable
injury.”).
17 See id. §§ 27.007(a), .009(a)(2).
5
repealed by the legislature. Indeed, written laws do not simply vanish
from existence once declared unconstitutional.” 18 The power to revoke,
repeal, erase, expunge, or excise a statute from the law books lies only
with our Legislature, which is composed of the people’s duly elected
representatives. 19 “There is no procedure in American law for courts or
other agencies of government—other than the legislature itself—to
purge from the statute books, laws that conflict with the Constitution as
interpreted by the courts.” 20 Although a court’s declaration that a law
is unconstitutional may circumscribe the legal effect of that law, 21 it
18 Ex parte E.H., 602 S.W.3d 486, 494 n.10 (Tex. 2020).
19 See TEX. CONST. art. II, § 1 (“The powers of the Government of the
State of Texas shall be divided into three distinct departments, each of which
shall be confided to a separate body of magistracy, to wit: those which are
Legislative to one, those which are Executive to another, and those which are
Judicial to another; and no person, or collection of persons, being of one of these
departments, shall exercise any power properly attached to either of the others,
except in the instances herein expressly permitted.”), art. III, § 1 (“The
Legislative power of this State shall be vested in a Senate and House of
representatives[.]”); Graphic Packaging Corp. v. Hegar, 538 S.W.3d 89, 104
(Tex. 2017) (“The power to enact our state laws together with the power to
amend or repeal existing state law is vested in the Texas Legislature.”); see
also TEX. CONST. art. I, § 28 (“No power of suspending laws in this State shall
be exercised except by the Legislature.”); Terrazas v. Ramirez, 829 S.W.2d 712,
723 (Tex. 1991) (“Without a determination that Senate Bill 31 is invalid, the
district court was prohibited from suspending its effect by article I, section 28
of the Texas Constitution[.]”).
20 Winsness v. Yocom, 433 F.3d 727, 728 (10th Cir. 2006); see Seila Law
LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2220 (2020) (Thomas, J.,
concurring) (“The Federal Judiciary does not have the power to excise, erase,
alter, or otherwise strike down a statute.”).
21See In re Lester, 602 S.W.3d 469, 471-73 (Tex. 2020); see also id. at
483-84 (Blacklock, J., dissenting) (noting that although “a statute continues to
exist and to have potential legal consequences after a court declares it
unconstitutional,” there are many ways a defendant could use the prior
6
does not usurp the Legislature’s exclusive province to determine what is
included in or removed from the statutory law books. 22
Because the Supreme Court of the United States has finally
overruled Roe and recognized that a state may protect fetal life by
prohibiting abortion, Roe’s declaration that Texas’s criminal abortion
laws are unconstitutional no longer carries any proscriptive force.
Sadly, for institutions that have adhered to this flawed declaration, Roe
erroneously circumscribed—for far too long—the legal effect of our duly
enacted laws criminalizing both the killing of fetal life and its funding.
That no longer being the case, the “authority to regulate abortion” has
been “returned to the people and their elected representatives,” 23 where
it rightfully belongs, and the people’s exercise of that authority—as
contained in the Texas law books—must now be given full effect.
John P. Devine
Justice
OPINION FILED: February 24, 2023
declaration of the statute’s unconstitutionality to defeat prosecution under the
statute).
22See Pool v. City of Houston, 978 F.3d 307, 309 (5th Cir. 2020) (“It is
often said that courts ‘strike down’ laws when ruling them unconstitutional.
That’s not quite right. Courts hold laws unenforceable; they do not erase
them.” (citing Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 VA. L.
REV. 933, 936 (2018))).
23 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022).
7