Opinion

Sadie Weldon v. the Lilith Fund for Reproductive Equity

Court
Texas Supreme Court
Filed
May 15, 2026
Status
Published
Author
Busby
On the bench
Busby
Cited by
0 cases
Authority
More cited than 40.6%

The opinion

Supreme Court of Texas

══════════

No. 24-0250

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Sadie Weldon,

Petitioner,

v.

The Lilith Fund for Reproductive Equity,

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Second District of Texas

═══════════════════════════════════════

Argued January 14, 2026

JUSTICE BUSBY delivered the opinion of the Court.

Although the underlying case concerns the constitutionality of

Senate Bill 8, also known as the Texas Heartbeat Act, this interlocutory

appeal presents a preliminary question regarding the application of the

Texas Citizens Participation Act (TCPA). The TCPA generally provides

a quick off-ramp for the dismissal of litigation that needlessly stymies

the exercise of the rights of association, free speech, or petition. Here,

the Lilith Fund for Reproductive Equity sued Sadie Weldon seeking a

declaratory judgment that the Heartbeat Act is unconstitutional, and

Weldon filed a TCPA motion to dismiss, which was denied. The court of

appeals affirmed, holding that the TCPA did not apply to the Fund’s

suit. We hold that the TCPA applies because the Fund’s suit was “based

on or . . . in response to” an earlier Rule 202 petition Weldon filed to

depose the Fund’s deputy director regarding potential violations of the

Heartbeat Act. TEX. CIV. PRAC. & REM. CODE § 27.005(b). We therefore

reverse and remand.

BACKGROUND

Before Dobbs v. Jackson Women’s Health Organization1

overturned Roe v. Wade2 and Planned Parenthood of Southeastern

Pennsylvania v. Casey,3 the Texas Legislature passed Senate Bill 8

(S.B. 8). That law, as we have explained elsewhere, provides a civil

cause of action for private citizens to sue abortion providers and others

regarding abortions that are performed without verifying the absence of

a fetal heartbeat. See Whole Woman’s Health v. Jackson, 642 S.W.3d

569, 573, 576 (Tex. 2022).4 After S.B. 8 went into effect, the Fund’s

deputy director, Ms. Neesha Davé, declared under penalty of perjury

that the Fund had “paid for at least one abortion without confirming the

gestational age of the client’s pregnancy and at least one abortion with

1 597 U.S. 215 (2022).

2 410 U.S. 113 (1973).

3 505 U.S. 833 (1992).

4 Stricter limits on abortion than those in S.B. 8 are now in effect.

See,

e.g., TEX. HEALTH & SAFETY CODE § 170A.002(a) (providing that, with certain

exceptions, “[a] person may not knowingly perform, induce, or attempt an

abortion”).

2

the belief that the client’s pregnancy was after the period in which

cardiac activity is usually detectable.” She stated that, “[i]n doing so, it

was Lilith Fund’s intention to pay for the abortions even if cardiac

activity was detected.”

Sadie Weldon filed a Rule 202 petition5 in Jack County in

January 2022. Weldon sought to depose Davé and have her produce

documents regarding any abortions provided in violation of the

Heartbeat Act. The trial court denied the petition in August 2022.

Meanwhile, forty-eight days after Weldon filed her petition and

while it was pending, the Fund filed this suit against her. The Fund

sought a declaratory judgment that S.B. 8 is unconstitutional on various

grounds, a temporary injunction preventing Weldon from filing any

S.B. 8 suits against the Fund until the Fund’s case concludes, an anti-

suit injunction against the Rule 202 petition, and attorney’s fees under

the Uniform Declaratory Judgments Act (UDJA).

Two months later, Weldon filed a TCPA motion to dismiss. The

trial court did not timely rule on the motion, so it was denied by

operation of law. Weldon filed this interlocutory appeal, and the court

of appeals affirmed, holding that the TCPA does not apply to this action

because it was not “based on or in response to” Weldon’s Rule 202

petition. 722 S.W.3d 40, 47-50 (Tex. App.—Fort Worth 2024). The court

5 A Rule 202 petition is a pre-litigation method of obtaining evidence

that can assist the petitioner in determining whether to file suit. See TEX. R.

CIV. P. 202.1 (“A person may petition the court for an order authorizing the

taking of a deposition on oral examination or written questions either: (a) to

perpetuate or obtain the person’s own testimony or that of any other person for

use in an anticipated suit; or (b) to investigate a potential claim or suit.”).

3

relied on the TCPA’s purpose statement to conclude that it applies only

to lawful exercises of speech and to protect the rights of people to file

meritorious lawsuits. Id. The court also relied on Texas Right to Life v.

Van Stean (Van Stean I), 704 S.W.3d 6 (Tex. App.—Austin 2023), a case

we reversed last term, 702 S.W.3d 348 (Tex. 2024). This petition

followed.

ANALYSIS

Weldon’s petition challenges whether her TCPA motion was

properly denied on the ground that the statute does not apply.6 The

TCPA’s stated purpose is two-fold: 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,” as well as “protect the rights of a person to file

meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM.

CODE § 27.002. The TCPA achieves this purpose primarily through “a

special procedure for the expedited dismissal of” retaliatory,

non-meritorious suits that seek to silence or intimidate those speaking

6 We note that various developments during the pendency of this

litigation could suggest that the case may now be moot. The parties do not ask

us to reconsider or cabin our precedent under which the Fund’s pending

request for attorney’s fees under the UDJA saves the case from mootness. See

State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); Allstate Ins. Co. v.

Hallman, 159 S.W.3d 640, 643 (Tex. 2005). Although application of that

precedent is sufficient for today’s purposes, nothing in this opinion should be

understood to foreclose the parties or the lower courts, on remand, from

discharging their shared obligation to carefully examine whether jurisdiction

over this dispute continues to exist.

4

on a matter of public concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex.

2015).

The TCPA dismissal procedure “requires a three-step decisional

process.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591

S.W.3d 127, 132 (Tex. 2019). At the first step, “the defendant must

demonstrate that the ‘legal action’ is ‘based on or is in response to’ the

defendant’s exercise of the right of speech, petition, or association.”

Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021) (quoting TEX. CIV.

PRAC. & REM. CODE §§ 27.003(a), .005(b)). If the defendant meets this

burden, then at the second step, “the claimant may avoid dismissal by

establishing ‘by clear and specific evidence a prima facie case for each

essential element of the claim in question.’” Id. (quoting TEX. CIV. PRAC.

& REM. CODE § 27.005(c)). Yet even if the claimant does so, “the court

still must dismiss the ‘legal action’” at the third step “if the defendant

‘establishes an affirmative defense or other grounds on which the

moving party is entitled to judgment as a matter of law.’” Id. (quoting

TEX. CIV. PRAC. & REM. CODE § 27.005(d)). The second and third steps

may be considered together,7 and a court need not analyze the second

step if it concludes that the third step requires dismissal.

The only issue the court of appeals reached was one not disputed

by the parties: whether Weldon satisfied the first step of the TCPA’s

dismissal procedure. Unlike that court, we answer yes: Weldon has

7 See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex.

2017). Thus, we have also described the procedure as having two steps. E.g.,

Lipsky, 460 S.W.3d at 586-87.

5

shown that the Fund’s suit for declaratory and injunctive relief is based

on or in response to Weldon’s Rule 202 petition.

“In analyzing the TCPA’s applicability, we follow settled

principles of statutory interpretation.” Walgreens v. McKenzie, 713

S.W.3d 394, 399 (Tex. 2025). That is, “[w]e construe statutes according

to their plain language, consider them as a whole, and ‘presume that the

Legislature chooses a statute’s language with care, including each word

chosen for a purpose, while purposefully omitting words not chosen.’”

Id. (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

439 (Tex. 2011)). And “we give undefined terms in a statute their

ordinary meaning unless ‘a different or more precise definition is

apparent from the term’s use in the context of the statute.’” Id. (quoting

TGS-NOPEC, 340 S.W.3d at 439).

We addressed the “based on or in response to” standard just last

term in McKenzie. Without settling on a comprehensive definition, we

noted helpful explanations from dictionaries and cases. For example,

“based on” includes “factually predicated on,” and “in response to”

denotes a “reaction” or “act in return.” See id. at 400. We conclude the

standard is met here.

Weldon’s Rule 202 petition is an exercise of the right to petition

as defined by the statute because it is “a communication in . . . a judicial

proceeding.” TEX. CIV. PRAC. & REM. CODE § 27.001(4)(A)(i). And this

suit by the Fund is a “legal action” because it is a “lawsuit” that

“requests . . . declaratory [and] equitable relief.” Id. § 27.001(6). Thus,

the remaining question at step one is whether the Fund’s declaratory

judgment action is “based on” or “in response to” Weldon’s exercise of

6

the right to petition. Id. §§ 27.003(a), .005(b). We conclude that it is for

the following reasons.

Most obviously, the Fund’s petition for declaratory judgment

requested an anti-suit injunction seeking to prevent Weldon from

continuing with her Rule 202 petition. Indeed, the Fund relied on the

Rule 202 petition to show the need for its requested injunction, alleging:

“Defendant Weldon has stated she will take action, and has already

taken prefatory steps to that action by filing a Rule 202 action. If

Weldon’s threatened actions are allowed to proceed, Lilith Fund will be

harmed in a manner from which it will be unable to recover.” The Fund’s

counsel also explained in a trial court hearing that the Fund “filed these

claims” “[i]n response to that Rule 202 petition which made clear that

Ms. Weldon was actively investigating potential SB 8 lawsuits against

Lilith Fund.” (Emphasis added.)

The Fund’s petition also expressly mentions the Rule 202 petition

or cites its contents more than a dozen times. Although the Fund’s

specific allegations that S.B. 8 should be declared unconstitutional on

various grounds focus on the Fund’s rights and conduct rather than

Weldon’s, the broader context reveals the connection between those

allegations and Weldon’s reliance on S.B. 8 in exercising her right to

petition. In the “jurisdiction and venue” section, for example, the Fund

alleges that Weldon is a proper party for the Fund’s declaratory

judgment claims because Weldon “clearly contends that S.B. 8 is valid

(if she did not, she would not be pursuing a petition under Rule 202 for

a pre-suit deposition to investigate alleged violations of SB8).”

Additionally, the Fund’s counsel acknowledged at oral argument that if

7

Weldon had not “identified herself as an interested person under the

UDJA then we wouldn’t have a basis under the UDJA to file [this] action

against her.”

Whatever the outer bounds of “based on” and “in response to,” this

case falls comfortably within them. When a TCPA-protected activity

results in a legal action seeking to enjoin that activity, the legal action

is based on or in response to the protected activity.8 And the remainder

of the Fund’s petition and the statements by its counsel confirm that its

requests to declare S.B. 8 unconstitutional are factually predicated on

or in reaction to Weldon’s protected Rule 202 petition.

The court of appeals reached the opposite conclusion by adopting

the approach taken in Van Stean I, 704 S.W.3d 6, a decision we

subsequently reversed and remanded on other grounds, 702 S.W.3d

348.9 Under that approach, the TCPA applies at step one only if the

defendant engaged in a “lawful [exercise of a right] protected by the

TCPA,” and the court takes the plaintiff’s position in the legal action as

8 Weldon argues that the court of appeals erred in considering whether

the Fund’s “requested relief” would prohibit her from engaging in activity

protected by the TCPA. See 722 S.W.3d at 50 n.13. We disagree. Although it

is not necessary that the requested relief have a negative impact on the exercise

of a protected right, such an impact—like the anti-suit injunction in this

situation—can be sufficient to show that the suit is “based on” or “in response

to” the exercise of the protected right. The TCPA provides that one of its

purposes is to “safeguard” those rights, TEX. CIV. PRAC. & REM. CODE § 27.002,

and we have explained that it protects citizens exercising their rights “from

retaliatory lawsuits that seek to intimidate or silence them.” Lipsky, 460

S.W.3d at 584.

9 The court of appeals recently issued its decision on remand in Van

Stean, which takes the same approach on this issue. See Tex. Right to Life v.

Van Stean (Van Stean II), 729 S.W.3d 896, 917-921 (Tex. App.—Austin 2026,

no pet. h.).

8

true in making that determination. Weldon, 722 S.W.3d at 47 (emphasis

added) (quoting Van Stean I, 704 S.W.3d at 13).

Here, because the Fund pointed to its own conduct and rights in

seeking to declare S.B. 8 unconstitutional and “sought to permanently

enjoin only ‘any efforts to enforce SB 8 against [it] if SB 8 is declared

unconstitutional,’”10 the court of appeals concluded the Fund was “not

seeking to limit [Weldon’s] ‘constitutional rights . . . to petition, speak

freely, associate freely, and otherwise participate in government to the

maximum extent permitted by law.’” Id. at 49 (omission in original)

(quoting TEX. CIV. PRAC. & REM. CODE § 27.002). Although safeguarding

these rights is one purpose of the TCPA, the court viewed this approach

as a necessary “counterbalance,” id., to serve the TCPA’s other purpose:

“protect[ing] the rights of a person to file meritorious lawsuits for

demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002. The court

declined to interpret the TCPA “to forbid the [Fund] from seeking an

answer to SB 8’s constitutionality.” 722 S.W.3d at 49.

This approach misunderstands the TCPA. The Legislature chose

to implement and balance both of its stated policies—safeguarding

protected rights while protecting meritorious suits—by establishing the

three-step dismissal procedure we have explained. That procedure does

not “forbid” any plaintiff from seeking resolution of meritorious claims.11

10 Id. at 48-49 (quoting Van Stean I, 704 S.W.3d at 13).

11 Thus, the court of appeals was incorrect to conclude that applying the

TCPA to this UDJA action would impermissibly “abrogate or lessen any other

defense, remedy, immunity, or privilege available under other constitutional,

statutory, case, or common law or rule provisions.” TEX. CIV. PRAC. & REM.

CODE § 27.011(a); see 722 S.W.3d at 49.

9

Instead, when the defendant shows that the plaintiff’s suit is based on

or in response to one of the defendant’s protected rights as defined by

the statute (step one),12 the plaintiff may proceed by making a prima

facie showing that its suit is meritorious and the defendant may respond

that it is not or that it fails for other reasons (steps two and three).

The court of appeals’ approach improperly blends these separate

steps. According to the court, because the Fund’s declarations concerned

its own conduct and it sought to enjoin Weldon’s investigation only “if

SB 8 is declared unconstitutional,” the Fund’s action did not limit any

lawful conduct protected by the TCPA and thus step one was not met.

722 S.W.3d at 47-49, 49 n.11. But whether S.B. 8 is unconstitutional

and Weldon’s conduct therefore unlawful are merits questions for steps

two and three, which address whether the Fund can establish by clear

and specific evidence a prima facie case or whether Weldon can show

she is entitled to judgment as a matter of law or establish an affirmative

defense. See TEX. CIV. PRAC. & REM. CODE § 27.005(c)-(d). The merit of

the plaintiff’s position generally is not relevant at the first step and not

assumed at the second and third.13 Because the first step has been met

for the reasons given above, the TCPA applies.

12 See McLane Champions, LLC v. Hou. Baseball Partners LLC, 671

S.W.3d 907, 917 (Tex. 2023) (“[W]e have held that the TCPA is not limited in

application to constitutionally guaranteed activities.”).

13 Some courts of appeals have held that certain alleged criminal

conduct, such as assault and stalking, falls outside the scope of the TCPA’s

protection such that suits based on or in response to such conduct are not

covered by the TCPA. E.g., Ekstam v. Wells, No. 12-25-00071-CV, 2025 WL

3170992, at *7 (Tex. App.—Tyler Nov. 12, 2025, pet. filed); Grant v. Finecy, No.

02-23-00310-CV, 2023 WL 8940395, at *7-8 (Tex. App.—Fort Worth Dec. 28,

10

CONCLUSION

We hold that the Fund’s legal action is based on or in response to

Weldon’s exercise of her right to petition, so the TCPA applies. Because

Weldon’s motion to dismiss satisfied step one of the TCPA analysis, we

reverse the court of appeals’ judgment affirming the denial of the motion

and remand for the court of appeals to consider steps two and three,

which it did not reach.14

J. Brett Busby

Justice

OPINION DELIVERED: May 15, 2026

2023, no pet.); Sanchez v. Striever, 614 S.W.3d 233, 245-46 (Tex. App.—

Houston [14th Dist.] 2020, no pet.). We take no position on that issue in this

opinion.

14 We note that in the court of appeals, Weldon contended that the

Fund’s UDJA action should be dismissed under the TCPA for several reasons

that do not touch on the merits of the Fund’s constitutional challenges to

S.B. 8. We are confident that, on remand, the court of appeals will abide by its

duty to “avoid unnecessary constitutional issues.” Elliott v. City of College

Station, 717 S.W.3d 888, 898 (Tex. 2025) (quoting In re Turner, 627 S.W.3d

654, 656 (Tex. 2021)). Thus, the remainder of this case may be resolved

without reaching the merits of the constitutional questions involved.

11

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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