Motion to Dismiss in THE AFIYA CENTER vs. MARK LEE DICKSON et al| Trellis.Law

On June 11, 2020 a Motion,Ex Parte was filed involving a dispute between Texas Equal Access Fund, The Afiya Center, and Dickson, Mark Lee, Right To Life East Texas, for DEFAMATION in the District Court of Dallas County.

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FILED
10/28/2020 5:17PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
DEPUTY
Darling Tellez

CAUSE NOS. DC-20-08 104, DC-20-08 1 33

The Aﬁya Center, § IN THE DISTRICT COURT
§
§
Plaintiff, §
§
V. § DALLAS COUNTY, TEXAS
§
Mark Lee Dickson, and §
Right t0 Life East Texas, §
§
Defendants. § 116th JUDICIAL DISTRICT

Texas Equal Access Fund § IN THE DISTRICT COURT
§
§
Plaintiff, §
§
V. § DALLAS COUNTY, TEXAS
§
Mark Lee Dickson, and §
Right to Life East Texas, §
§
Defendants. § 116th JUDICIAL DISTRICT

PLAINTIFFS’ JOINT OPPOSITION TO DEFENDANTS’
SECOND AMENDED MOTION TO DISMISS
UNDER THE TEXAS CITIZENS PARTICIPATION ACT
Plaintiffs The Aﬁya Center (“TAC”) and Texas Equal Access Fund (“TEA Fund”) hereby

submit their Opposition to Defendants’ Second Amended Motion t0 Dismiss Under the Texas

Citizens Participation Act (“Mot”) and respectfully show the Court as follows.

I. INTRODUCTION AND SUMMARY 0F ARGUMENT

Abortion isnot a crime in Texas and has not been a crime in Texas since the United States

Supreme Court’s decision in Roe v. Wade, which struck down the laws in Texas criminalizing

abortion as unconstitutional. 410 U.S. 113, 166 (1973). Providing truthful information about
abortion is not illegal under Texas law; it is,and always has been, protected activity and speech.

Providing ﬁnancial assistance to a private citizen isnot illegal under Texas law. And none ofthose

things are, 0r ever have been, murder under Texas law. In fact, even pre-Roe, When Texas’s laws

criminalizing abortion had not yet been declared unconstitutional, “abortion” was not “murder.”

See infra, note 3.

Yet for more than a year now, Defendants Mark Lee Dickson (“Dickson”) and Right t0

Life East Texas (“w”) have publicly said that TAC, TEA Fund, and other similar

organizations are literally “criminal organizations” Who are assisting With murder “With malice

aforethought.” They have done so in the face of settled Texas law that falsely accusing someone

Ofcommitting a crime isdefamationper se. They have done so in the face ofRoe (and its progeny),

which made clear that abortion is not crime. They have done s0 despite being told that such

statements are false and defamatory and harmful to TAC and TEA Fund. And they continue to do

so now, even after having been sued for defamation in this Court.

There isno big mystery surrounding Why Defendants lieabout TAC, TEA Fund and other

similar organizations. As explained in their petitions (later consolidated into one case before this

Court), Defendants’ multiple statements have been made t0 confuse and scare the public (in

particular, women) about TAC and TEA Fund speciﬁcally and about abortion generally. Dickson

and his counsel themselves acknowledge that the entire point of the disinformation campaign is to

convince the citizens of Texas that abortion is currently illegal, that anyone who obtains an

abortion is committing a crime that can be prosecuted at a later date, and that any organization or

person who assists a person in obtaining an abortion is also committing crimes for Which

prosecution and incarceration Will come in the future. See infra, Section IV.A.3.(c). It isa fear

campaign, pure and simple, based 0n a series 0f statements that both Dickson and his lawyers (Who
now appear t0 be fact witnesses in this matter) have put forth with complete disregard for the truth.

The gist of the statements is that abortion is literally a crime (murder, even) in Texas and TAC and

TEA Fund are literally aiding and abetting criminal activity as a “criminal organization.”

Defendants do not contest the facts alleged by TAC or TEA Fund, nor d0 they claim that

the statements were not made.1 Instead, they put forth three main arguments in support 0f their

motion to dismiss: (1) TAC and TEA Fund cannot establish damages; (2) the statements are true;

and (3) ironically, the statements could never be believed by any reasonable person t0 be true and

Dickson is allowed to disagree With the United States Supreme Court. As explained in detail

below, none 0f these arguments has any merit. TAC and TEA Fund have more than satisﬁed their

current burden to establish primafacie claims of defamation and conspiracy and Defendants have

come nowhere near establishing their own burden 0f proving any defense as a matter of law.

As the Texas Supreme Court has said:

[B]oth the U.S. Constitution and the Texas Constitution robustly
protect freedom of speech. But, these safeguards are not unlimited
and do not categorically deprive individuals of legal recourse When
they are injured by false and defamatory speech.

D Magazine Partners, LP. v. Rosenthal, 529 S.W.3d 429, 431 (TeX. 2017); see also Bentley v.

Bunton, 94 S.W.3d 561, 578 (TeX. 2002) (“[T]he Texas Constitution expressly guarantees the right

t0 bring reputational torts . . . [and its] free speech provision guarantees everyone the right t0

‘speak, write or publish his opinions 0n any subj ect, being responsiblefor abuse 0fthatprivilege.’”

(emphasis original»; Bentley, 94 S.W.3d at 585 (“A soapbox, electronic 0r wooden, does not lift

a speaker above the law of liability for defamation”). The TCPA is “designed to balance these

policies,” and When, as here, a person or organization ﬁles a “meritorious 1awsuit[] for

1
TAC quoted each of the statements in its and correct copies of them
petition, but is also including true as
Exhibits 1 through 8 for the Court’s convenience.
demonstrable injury,” the TCPA poses no barrier to it. D Magazine Partners, LP, 529 S.W.3d at

433-34; see also Van Der Linden v.Khan, 535 S.W.3d 179, 188 (TeX. App.—Fort Worth 2017,

pet. denied) (“The statute’s purpose is t0 identify and summarily dispose of lawsuits designed t0

chill First Amendment rights, but not to dismiss meritorious 1awsuits.”). Defendants’ motion t0

dismiss should be denied in its entirety.

II. FACTUAL BACKGROUND

As TAC and TEA Fund allege in their petitions, Dickson, RLET, and their lawyers

(alongside other anti-abortion groups) have been waging a coordinated disinformation campaign

against TAC, TEA Fund, and other organizations providing abortion assistance programs since at

least June 2019. See TAC Original Petition (“TAC Pet”) at 11119-29,TEA Fund Original Petition

(“TEA Fund Pet”) at 1N 8-28. One aspect of this campaign involves Dickson traveling around

Texas to spread lies about the criminality of abortion and to persuade cities and local governments

t0 enact a patently unconstitutional ordinance purporting to ban abortion, and falsely designating

organizations like TAC and TEA Fund as literal criminals that are aiding and abetting murder with

“malice aforethought.” Id. Dickson admits that these ordinances were drafted at his behest by a

“legal expert” who had clerked for Justice Scalia—presumably his lead counsel in this case,

Jonathan Mitchell (“Mitchell”). See id. at TEA Fund Pet. at1]26, TAC Pet. at 1]
27.

Mitchell detailed the strategy he and the Defendants are now jointly employing in various

writings over the past two decades, perhaps most speciﬁcally in his article “The Writ 0f Erasure

Fallacy.” See Jonathan F. Mitchell, The Writ—of-Emsure Fallacy, 104 Va. L. Rev. 933 (2018)

[hereinafter, “Mitchell Article”]. His fringe theory rests on the premise that the federal judiciary

cannot “strike down” an unconstitutional statute, and posits that those who disagree with Supreme

Court decisions ought t0 behave as though (and craft legislative efforts as if) such a decision could
be overturned at any moment. See id. at 933. In pursuit of such efforts, he argues that people

should simply “induce compliance” With unconstitutional statutes—like the abortion statutes at

issue in Roe and here—by “sabre-rattling” and threatening the public with criminal and civil

penalties when and if Supreme Court precedent is reconsidered by a less favorable court. See id.

at 992-93, 1000-03.

The suggestions Mitchell espouses in the 87-page article include the following: (1)

threaten the public with retroactive punishments for those Who ignore a law declared

unconstitutional in order t0 induce compliance With that unconstitutional law, id. at987, 992; (2)

drive up costs and attorneys’ fees for parties Who do not follow laws declared unconstitutional to

induce compliance, id. at 1002; (3) create opportunities for those who support unconstitutional

laws to forum shop in pursuit of a “friendly judge” Who Will offer an opinion 0r ruling in

contravention 0f the Supreme Court precedent at issue in order to dissuade others from exercising

their constitutional rights (here, from seeking abortions), id. at 1002-03; and (4) create qui tam

causes 0f action t0 allow private citizens t0 bring suit against those Who insist 0n exercising their

constitutional rights—if those rights Violate an unconstitutional state law—When the state cannot

bring such an action, id. at 1001.

Dickson’s public statements about TAC and TEA Fund mirror Mitchell’s strategy, and it

is clear that Mitchell is at least a fact witness, if not a probable defendant, in this case. Their

strategy is literally laid out in Mitchell’s article. While the article itself may be academic in its

premise, the implementation 0f Mitchell’s strategy in the real world is both defamatory and

dangerous} and both effects are openly intended. By design, both the text of the ordinance itself

2
Sowing discord and confusion about abortion is particularly dangerous, as the past four decades have been
replete with incidents of Violence, shootings,and bombings 0f people and places even suspected 0f being associated
With abortion in any way.
and public statements made by Defendants extend far beyond inflammatory, but protected rhetoric

about the moral character of abortion. TEA Fund Pet. at ¶¶ 22-36; TAC Pet. at ¶¶ 23-37. Rather,

the objective of the campaign, made clear by Mitchell’s scholarship and Dickson’s own statements,

is to confuse people about the actual legality of abortion so that they think twice before

approaching organizations like TAC or TEA Fund for assistance. Id.

But despite numerous public proclamations that TAC and TEA Fund are currently breaking

criminal law, it is clear that even Dickson and Mitchell do not actually believe that TAC or TEA

Fund is engaged in criminal conduct, much less aiding and abetting actual murder. See TEA Fund

Pet. at ¶¶ 41-46; TAC Pet. at ¶¶ 42-47. For example, while the ordinances they drafted purport to

ban abortion, they do not permit the enforcement of any penalties for doing so “unless … the

Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey,

505 U.S. 833 (1992).” TEA Fund Pet., at ¶42; TAC Pet. at ¶ 43. This provision, which makes the

ordinances legally inoperable, would be unnecessary if not for the obvious legality of abortion

under long-standing precedent binding on all courts. TEA Fund Pet. at ¶¶ 41-42; TAC Pet. at

¶¶ 42-43. This provision of the ordinances and many other statements by Defendants demonstrate

that they are waging their misinformation campaign with full knowledge of its falsity. Id. Their

actions have also caused real harm to TAC and TEA Fund and those who each organization serves.

TEA Fund Pet. at ¶ 46; TAC Pet. at ¶ 47 see also Section IV.A.4, infra.

This type of brazen strategy to scare women who may need an abortion and stir up

animosity toward them and those who may help them is abhorrent and should not be countenanced.

If a constitutional right means anything, this type of end-run around the law cannot be permitted

without legal consequence. Defendants and their counsel are purposefully sowing misinformation

and discord, and Texas law provides that they must be accountable for their false statements and

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purposeful defamation. TAC and TEA Fund therefore brought this action against Defendants,

alleging (1) defamation against Dickson and RLET, and (2) conspiracy to commit defamation

against RLET. TEA Fund Pet. at ¶¶47-57, TAC Pet. at ¶¶ 48-58.

III. LEGAL FRAMEWORK

A. Texas Citizen Participation Act

The TCPA imposes a three-step analysis. A defendant may file a motion to dismiss under

the TCPA “if a legal action is based on or is in response to a party’s exercise of the right of free

speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code § 27.003. If the

TCPA is properly invoked, the plaintiff must then establish a prima facie case for each element of

the asserted claims by clear and specific evidence. Id. at § 27.005(c). If the plaintiff satisfies that

burden, the defendant may only obtain dismissal by “establishing by a preponderance of the

evidence each essential element of a valid defense to the claim.” D Magazine Partners, LP, 529

S.W.3d at 434 (quoting Tex. Civ. Prac. & Rem. Code § 27.005(d)). TAC and TEA Fund do not

contest that the TCPA may be properly invoked with respect to the defamation claim it has

asserted. Therefore, only the second and third steps of the analysis are at issue.

With regard to the second step, Plaintiffs are not required to prove the elements of its claims

in response to Defendants’ motion. See In re Lipsky, 460 S.W.3d 579, 590-91 (Tex. 2015). All it

must do is establish a prima facie case on the basis of “clear and specific” evidence. Id. This is

not an “elevated evidentiary standard” and simply means that TAC and TEA Fund:

…must provide enough detail to show the factual basis for its claim.
In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was
said, the defamatory nature of the statements, and how they
damaged the plaintiff should be sufficient to resist a TCPA motion
to dismiss.

-7-
Id. at 591; see also Van Der Linden, 535 S.W.3d at 188-89. Plaintiffs can satisfy this requirement

through direct or circumstantial evidence. Van Der Linden, 535 S.W.3d at 188.

The operative “clear and specific” standard is not the same as the “clear and convincing”

evidentiary standard. The Texas Supreme Court has specifically held that the “clear and

convincing” evidentiary standard does not apply to motions to dismiss under the TCPA. See In re

Lipsky, 460 S.W.3d at 589 (“Although it sounds similar to clear and convincing evidence, the

phrases are not legally synonymous.”); see also Campbell v. Clark, 471 S.W.3d 615, 631 n.3 (Tex.

App.—Dallas 2015, no pet.) (same). This Court can therefore simply confirm that Plaintiffs

sufficiently pled (or provided some evidence of) the “when, where, and what was said, the

defamatory nature of the statements, and how [Defendants] damaged [them].” See In re Lipsky,

460 S.W.3d at 591. As explained below, TAC and TEA Fund have met this standard in all respects.

With regard to the third step, Defendants are required to satisfy an evidentiary burden in

order to prevail on their asserted defenses as a matter of law; they must establish by a

“preponderance of the evidence” each essential element of a valid defense. As discussed below,

Defendants’ claimed defenses are simply mirror images of the incorrect arguments they put

forward to assert that TAC and TEA Fund cannot establish a prima facie case of their affirmative

claims. They therefore fail for all the same reasons. In addition, to the extent there is a fact

question regarding any element of Defendants’ claimed affirmative defenses (there are), dismissal

is improper. See Rosales v. Comm’n for Lawyer Discipline, 03-18-00725-CV, 2020 WL 1934815,

at *3-4 (Tex. App.—Austin Apr. 22, 2020, no pet.).

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IV. ARGUMENT & AUTHORITIES
A. Plaintiffs have clear and speciﬁc evidence 0f all 0f the required elements 0f
defamation.

Defamation requires the (1) publication 0f a false statement of fact t0 a third party, (2) that

was defamatory concerning the plaintiff, (3) while acting with actual malice, if the plaintiff was a

public ofﬁcial 0r public ﬁgure, and (4) which caused damages, unless the defamatory statements

were defamatory per se. Campbell, 471 S.W.3d at 624.

1. Defendants published false statements of fact.3

Defendants claim that TAC and TEA Fund have not pled a “false statement 0f fact” and,

similarly, that the statements Defendants made were “true 0r substantially true.” Mot. at pp. 11-

20, 29-3 1. However, Defendants’ statements that TAC and TEA Fund engaged in criminal

conduct by helping women exercise their constitutional right to obtain abortions are

unambiguously false. Abortion isnot a crime in Texas, or anywhere else in the United States, and

even if the new ordinances (Which were themselves drafted as part 0f the larger disinformation and

defamation efforts of Defendants) could make abortion a crime in some Texas cities (they did not

and they cannot as a matter 0f law), Plaintiffs have not violated any of them.

(a) Abortion isnot a crime.

Defendants’ convoluted argument that abortion is somehow stillillegal and that TAC and

TEA Fund can therefore truthfully be described as a “criminal organization” relies on the fact that

the Texas Legislature did not formally repeal the statutes criminalizing abortion that Roe held “as

a unit, must fall” for Violating the United States Constitution. See Mot. at pp. 4-5; Roe, 410 U.S.

at 164. Defendants therefore maintain that abortion isa crime even as they acknowledge Roe held

3
Defendants concede that 0f the statements they
at least three made “are not entitled to the defense of truth.”
See Mot. at31 (referencing statements presented in paragraphs 28, 30, and 37 of the Original Petition).

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the very statutes at issue t0 be invalid. In other words, Defendants want this Court to accept at the

motion to dismiss stage that it istruthful as a matter of law t0 characterize as “criminal” actions

taken in Violation of state statutes that the United States Supreme Court has determined to be

unconstitutional.

This argument rests entirely on Mitchell’s fringe theory 0f judicial review that courts d0

not actually “strike down” or nullify statutes When pronouncing them unconstitutional. See Mot.

at p. 5 (“Although it isoften said that the Supreme Court ‘strikes down’ statutes when pronouncing

them unconstitutional, that phrase is a misnomer. ..”); see also id. at Exhibit 3, 1116 (Afﬁdavit of

Mark Lee Dickson) (ﬁnding Mitchell’s article to be “persuasive” and “conﬁrm[ing] [his] belief

that abortion remains a ‘criminal’ offense under Texas law, despite the Supreme Court’s ruling in

Roe v. Wade”). But the theory is aspirational at best and, as Mitchell himself admits, “[t]he belief

that federal courts ‘strike down’ unconstitutional statutes is widely held throughout our legal and

political culture.” Mitchell Article at 935, 1018 (emphasis added). The United States Supreme

Court has refused t0 adopt Mitchell’s theory, even as he has speciﬁcally encouraged them through

brieﬁng to d0 so. See June Med. Servs. LLC v. Gee, 136 S. Ct. 1354 (2016), 2019 WL 74233944
The Supreme Court of Texas has also rejected Mitchell’s alternative View, and Defendants’

suggestion to the contrary ismisleading at best. See Mot. at p. 5. Additionally, Mitchell has based

several additional cases 0n a similar theory ofjudicial review in recent months; at this time, at least

one of those courts has already rej ected its premise (a fact 0f which presumably he advised Mr.

Dickson before Mr. Dickson made several 0f his defamatory statements). See Exhibits 11, 11. A.,

1 1.B., 1 1.C. (a notice of related case regarding one ofthese matters ﬁled by Plaintiffs, the brieﬁng

4
Indeed, not a single Justice took the opportunity in June Medical to endorse Mitchell’s theory. See June
Medical Services, LLC v. Russo, 140 S. Ct.2103 (2020).

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and court order in that case, and an affidavit of Jonathan Mitchell establishing the duration of his

alleged attorney-client relationship with Defendant Dickson).

Indeed, the portion of the Texas Supreme Court case of Pidgeon v. Turner, 538 S.W.3d 73,

88 (Tex. 2017) that Defendants rely on has been overruled. See In re Lester, 602 S.W.3d 469,

483-84 (Tex. 2020), reh’g denied (June 19, 2020) (Blacklock, J., dissenting) (explaining that the

majority opinion overruled Pidgeon’s pronouncement about judicial review and that “[u]nder

today’s decision, statutes declared unconstitutional by courts no longer exist”); Ex parte E.H., 602

S.W.3d 486, 502-03 (Tex. 2020), reh’g denied (June 19, 2020) (Blacklock, J., dissenting) (noting

that the majority’s holding that an unconstitutional statute “has been judicially voided and treated

as having never existed” was contrary to the court’s prior view expressed in Pidgeon). Moreover,

just a few months ago, a seven-member majority of the Texas Supreme Court expressly held that,

under Texas law, it is not a crime to violate a statute held to be unconstitutional:

Here, as a matter of historical fact, Lester’s conduct was not a crime
at the time it was committed because the Court of Criminal Appeals
had already declared the online-solicitation statute unconstitutional.
Lester is therefore actually innocent in the same way that someone
taking a stroll in the park is actually innocent of the crime of walking
on a sidewalk. No such crime exists. Just because existing actual-
innocence jurisprudence does not contemplate something as
outrageous as Lester’s case does not mean that Lester, who
committed no crime, is anything but actually innocent.

In re Lester, 602 S.W.3d at 473. (emphasis added).

This recent opinion confirms what Texas courts have long held—that when a statute is

deemed to be unconstitutional, for all practical purposes, it no longer exists. See Smith v. State,

463 S.W.3d 890, 895 (Tex. Crim. App. 2015) (collecting Texas state court cases for the proposition

that “when a statute is adjudged to be unconstitutional, it is as if it had never been”). Similarly,

since Marbury v. Madison, the Supreme Court of the United States has declared that an

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unconstitutional statute is “void” and must be treated as “though itbe not law.” 5 U.S. 137, 177

(1 803); see also Ex parte Siebold, 100 U.S. 371, 376-77 (1 879) (“An unconstitutional law is void,

and is as no law. An offence created by it is not a crime.”); Hiett v. United States, 415 F.2d 664,

666 (5th Cir. 1969), cert. denied, 397 U.S. 936 (1970) (explaining that “an unconstitutional statute

in the criminal area is t0 be considered no statute at all” and that it is“well settled” that someone

who violates an unconstitutional criminal statute “has not in the contemplation of the law engaged

in criminal activity.”).5

It is one thing t0 say that the Texas abortion statutes are still“0n the books” but quite

another to say that they remain legally operative such that the conduct they proscribe is still

considered criminal. Binding precedent from the Supreme Court of Texas, binding precedent from

the Supreme Court 0f the United States, and Defendants’ counsel’s own academic work

demonstrate that Roe unquestionably rendered Texas’s anti-abortion statutes legal nullities. Those

01d statutes therefore provide no basis upon which Defendants can claim that their statements are

true.6

5
The Texas Attorney General also weighed in speciﬁcally 0n the effect 0f Roe shortly after it was decided
and similarly concluded “Articles 1191, 1192, 1193, 1194 and 1196, Texas Penal Code have been held
unconstitutional and are n0 longer of any effect.” Opinion No. H-369, The Attorney General 0f Texas (Aug. 13,
1974). A true and correct copy of the Attorney General’s Opinion is included as Exhibit C to Exhibit 10.
6
Defendants’ statements that TAC and TEA Fund have committed the speciﬁc crime 0f murder are even
more egregious because Texas’s 01d murder
anti-abortion statutes, even prior t0 Roe, never considered abortion to be
and were notably distinctfrom the state’shomicide statutes.Only Article 1194 0f the now-defunct statuteseven
mentioned murder and in that instance only t0 indicate that “if the death 0f the mother is occasioned” by the abortion
“it is murder.” See TeX. Pen. Code arts. 1191-1 194, 1196 (attached as Exhibit 1 t0 Defendants’ motion, under their
previous numbering—Art. 1194 is numbered Art. 45 12.4). This necessarily implies that abortion that did not occasion
the death 0f the mother was not murder. Thus, abortion has never been murder in Texas. See Thompson v. State, 493
S.W.2d 913, 919 (Tex. Crim. App. 1971), vacated in light ofRoe v. Wade, 410 U.S. 950 (1973) (“In the homicide
statute the Texas Legislature has manifested its intent t0 protect that human life in existence by actual birth.” (emphasis
added». Defendants argument that the ordinances, Which are legally inoperative, nevertheless eliminated the “legal
status” of abortion, thereby removing abortion from the “lawful medical procedures” exception to homicide under
Texas law, should be rejected. See Mot. at pp. 3, 24; infra at Section IV.A.1.(b).

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Moreover, even if it were a crime to violate an unconstitutional statute (it is not),

Defendants’ statements are still false because Texas’s old anti-abortion statutes have been repealed

by implication. This occurred when the Texas legislature enacted new laws regulating abortion

that are inconsistent with those that were the subject of Roe. See, e.g., Tex. Health & Safety Code

Ann. § 245.001 et seq. (regulating reporting and licensing requirements for abortion facilities in

Texas). Under Texas law, when a newly-passed statute irreconcilably conflicts with an existing

one, the existing one is repealed by implication. See Ellis v. Holcombe, 69 S.W.2d 449, 452 (Tex.

Civ. App.—Galveston 1934, writ ref’d).

Here, the conflict is clear: an act cannot be both entirely illegal and legal within a single

regulatory framework. The Fifth Circuit applied this exact analysis to the statutes at issue in Roe

(and here) and arrived at the same conclusion:

The Texas statutes that criminalized abortion (former Penal Code
Articles 1191, 1192, 1193, 1194 and 1196) and were at issue in Roe
have, at least, been repealed by implication. Currently, Texas
regulates abortion in a number of ways. For example, a
comprehensive set of civil regulations governs the availability of
abortions for minors. Texas also regulates the practices and
procedures of abortion clinics through its Public Health and Safety
Code. Furthermore, Texas regulates the availability of state-funded
abortions.

These regulatory provisions cannot be harmonized with provisions
that purport to criminalize abortion. There is no way to enforce both
sets of laws; the current regulations are intended to form a
comprehensive scheme—not an addendum to the criminal statutes
struck down in Roe. As the court stated in Weeks, a strikingly
similar case, “it is clearly inconsistent to provide in one statute that
abortions are permissible if set guidelines are followed and in
another provide that abortions are criminally prohibited.

McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) (holding that a declaratory judgment action

seeking to abrogate Roe was moot because the anti-abortion statutes struck down by it were

subsequently repealed by implication). Defendants have no legal leg to stand on with regard to

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the falsity of their statements that TAC and TEA Fund are literally committing crimes and

engaging in murder by helping women exercise their constitutional right to abortion.

(b) The ordinances do not criminalize abortion, and regardless, neither TAC
nor TEA Fund has violated any of them.

Nor can the Defendants’ invocation of the city ordinances (which are themselves part of

the same disinformation and defamation scheme) salvage their arguments. By their own terms,

the ordinances are legally inoperable and therefore cannot be said to criminalize any conduct. The

proposed text of each and every ordinance drafted by Mitchell and Dickson states that it cannot be

enforced “unless and until the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and

Planned Parenthood v. Casey, 505 U.S. 833 (1992), and permits states and municipalities to once

again enforce abortion prohibitions.” See Exhibit 1, Waskom Ordinance, at p. 4. Lacking a

government enforcement mechanism, the ordinances cannot be said to proscribe any criminal

conduct.

Black’s Law Dictionary, for example, defines a “crime” as “[a]n act that the law makes

punishable,” Crime, Black's Law Dictionary (11th ed. 2019) (emphasis added), while the Merriam-

Webster Dictionary defines it as “an illegal act for which someone can be punished by the

government,” Crime, Merriam-Webster, www.merriam-webster.com/dictionary/crime (last

visited October 1, 2020) (emphasis added); see also United States v. Guidry, 456 F.3d 493, 502

(5th Cir. 2006). The explicit reason why these ordinances are unenforceable—because Roe and

Casey made laws forbidding abortion unconstitutional—confirms that they are currently legal

nullities, just like Texas’s anti-abortion statutes that are still technically “on the books.” Indeed, a

municipality is specifically prohibited from enacting an ordinance that conflicts with state or

federal law. See, e.g., Tex. Const. art. XI, § 5(a) (mandating that no city ordinance “shall contain

any provision inconsistent with the Constitution of the State, or of the general laws enacted by the

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Legislature of this State”); Janus Films, Inc. v. City of Fort Worth, 354 S.W.2d 597, 599 (Tex.

Civ. App.—Fort Worth 1962), writ ref’d n.r.e., 163 Tex. 616, 358 S.W.2d 589 (1962).

But even if “violating” the unenforceable ordinances could be described as criminal,

neither TAC nor TEA Fund has done so. Only a small fraction of TAC’s work involves abortion,

and that work is limited to providing financial assistance to individuals who cannot afford the full

cost of an abortion procedure; the TEA Fund similarly does not perform or assist in the

performance of abortions. Ex. 9. A., Affidavit of Marsha Jones at ¶¶ 3-4 (noting that TAC does

not perform or assist in the performance of abortions); Ex. 9. B., Affidavit of Kamyon Conner at

¶ 5 (noting that TEA Fund does not perform or assist in the performance of abortions). However,

neither Plaintiff has even done that within the limits of any of the cities that passed versions of

Defendants’ ordinance. Ex. 9. A., ¶ 5; Ex. 9. B., ¶ 6. None of those cities have had an abortion

provider within their city limits since any of the ordinances were passed. Id. It is therefore

impossible for TAC or TEA Fund to have violated, or aided and abetted others in violating, any of

the ordinances.

Defendants also cannot rely on the fact that some of the ordinances that they have been

shopping all over the state still label TAC and TEA Fund as “criminal organizations” to support

their argument that the statements they made were non-defamatory. For reasons already described,

there is no legal basis for that characterization and Defendants clearly conveyed much more by

their statements than that some cities had ceremoniously declared Plaintiffs to be “criminal

organizations,” which they only did at the behest and encouragement of Defendants (and their

- 15 -
counsel).7 Rather, Defendants falsely stated that TAC and TEA Fund were actually engaging in

punishable Violations of criminal laws

Any doubt that TAC and TEA Fund have met the “clear and speciﬁc” standard With regard

t0 the falsity 0f Defendants’ statements is also put to rest by the testimonies 0f TAC’s co-founder

and Executive Director and TEA Fund’s Executive Director. In her afﬁdavit, TAC Executive

Director Marsha Jones categorically denies that the organization has ever committed a crime, much

less aided or abetted murder. EX. 9. A. at ﬂ 6. She also swears that neither TAC nor any 0f its

agents have ever been the subj ect of any governmental investigation or prosecution for a crime as

a result 0f TAC’S operation 0r mission. Id. For the TEA Fund, Executive Director Kamyon

Conner establishes the same facts in her afﬁdavit. EX. 9. B. at ﬂ 7. Defendants’ repeated statements

to the contrary are unquestionably false and Defendants have put forth n0 evidence at all t0suggest

that they undertook any investigation about Plaintiffs’ actual activities or any evidence that either

Plaintiff has ever been the subject 0f a criminal government investigation 0r prosecution. That,

too, is by design. The truth about Plaintiffs simply does not matter t0 Defendants; generating

confusion about abortion and maligning TAC and TEA Fund are both the ends and the means for

them.

7
Thus, in addition t0 being legally invalid, Defendants would have this Court ﬁnd that they can retroactively
shield themselves from theirown defamatory statements merely by convincing others t0 adopt that very defamation.
But convincing others 0f lies—even if those others are members 0f a city council—does not make the lies actually true.

Defendants are the authors 0f the political enemies lists they persuaded these cities t0 enshrine intheir ordinances:
they are responsible for those words.
8
This characterization also amounts to an unconstitutional bill0f attainder,as many citieshave already
of the provisions naming

Case Info

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PARKER, TONYA Track Judge’s New Case

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Document Filed Date

October 28, 2020

Case Filing Date

June 11, 2020

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Parties

DICKSON, MARK LEE Defendant
ECKLUND, JENNIFER R. Attorney for the Plaintiff
MITCHELL, JONATHAN F Attorney for the Defendant
RIGHT TO LIFE EAST TEXAS Defendant
TEXAS EQUAL ACCESS FUND Plaintiff
THE AFIYA CENTER Plaintiff
Elizabeth Myers Attorneys for Plaintiffs
John Atkins Attorneys for Plaintiffs
H. Fillmore Attorney
Douglas Hughes Attorney
Charles Fillmore Attorney
Martin Whittaker Attorneys for Defendants
Hannah Vahl Attorneys for Defendants
Mackenzie Wallace Attorneys for Plaintiffs

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Motion,Ex Parte: THE AFIYA CENTER vs. MARK LEE DICKSON et al

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