Significant Texas abortion ban might be facing a major loss in court.

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It’s easy to forget that Texas’ bounty bill, S.B. 8, was once at the epicenter of the nation’s abortion politics. In 2021, Texas passed the law, which allows literally anyone to sue providers and those who aid them any time an abortion is performed after six weeks of pregnancy. The law created a blueprint for other conservative states and was upheld by the Supreme Court later that year—prior to the decision that overturned Roe v. Wade. It also had major impacts: leading clinics to stop offering procedures after six weeks and eventually producing an increase in both births among teenagers and infant mortality across the state. But now, S.B. 8 seems quaint, a relic of 2021—just like reporters discussing the “post-Trump era” or Ben Affleck and J.Lo giving it another try. Texas now enforces a law that bans abortion from fertilization and another, passed just this year, that authorizes suits against anyone who mails, provides, manufactures, or distributes abortion pills. No one seems to need S.B. 8 when more powerful criminal laws are on offer.

But bounty bills are now at the center of a major conflict about whether ban states can censor speech, advocacy, and donations related to abortion. S.B. 8 certainly has ambitions to do just that—its coverage of aiding or abetting explicitly covers “paying for or reimbursing the costs of an abortion,” but it doesn’t stop there. Conservative attorneys general are suing Planned Parenthood for hundreds of millions of dollars for statements comparing the safety record of the abortion pill mifepristone to Tylenol despite the drug’s safety record. North Dakota has its own suit against Mayday Health, a group that provides information about reproductive alternatives, for advertising that people who didn’t want to be pregnant could visit the group’s website. The S.B. 8 suits won’t just show whether abortion-rights supporters have found a chink in the law’s armor. The litigation will also shape a brewing war about the censorship of abortion-related speech.

The latest fight began in 2022, when two Texas advocacy groups began looking for ways to protect their work helping people access abortion by traveling out of state. Major anti-abortion organizations and individual plaintiffs were already targeting these abortion funds under S.B. 8, and so the funds responded with a barrage of lawsuits in both state and federal court, arguing that S.B. 8 violated the First Amendment by hamstringing how the plaintiffs talked to clients and advocated for reproductive rights.

Then there is money, the lifeblood of abortion funds. The Supreme Court has protected some forms of election spending under the First Amendment, and the abortion funds argue that the same doctrine protects them too. The lawsuits raise other arguments: that the statute is so ambiguous that no one would know what they’re allowed to do, and that the law violates principles of equal protection under the law by creating a special set of procedural rules that apply only to people who use it to sue.

District courts in Chicago and Washington, D.C., dismissed the federal suits on procedural grounds, but it still seems like abortion opponents in Texas are worried about the constitutional questions. That’s why they’ve gone on the offensive. In an ironic twist, in one prominent case now before the Texas Supreme Court, they’re arguing that constitutional challenges to S.B. 8 itself undermine protected speech.

That’s the issue in Weldon v. Lilith Fund. Sadie Weldon, a private citizen, sought to depose the Lilith Fund’s deputy director using a special Texas mechanism called a 202 petition that allows people to investigate a potential claim before filing suit.

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Weldon hardly came up with the idea on her own: Jonathan Mitchell, the architect of S.B. 8, had filed at least nine such petitions by the spring of 2024, including against people who traveled out of state for abortion. The Lilith Fund was ready to go, using Weldon’s petition as an opening for another constitutional challenge to S.B. 8. Mitchell then asked the court to dismiss the Lilith Fund’s countersuit, invoking what is called an anti-SLAPP law. These laws, which stand for anti–strategic lawsuit against public participation law, or SLAPP, are meant to stop frivolous lawsuits by powerful companies and individuals looking to silence their critics and suppress protected speech. Texas’ law applies to suits on speech about “matters of public concern.”

Weldon and some other anti-abortion plaintiffs lost on those claims in lower courts, which concluded that the Lilith Fund was trying to make sure that the state was not “enforcing an unconstitutional statute,” not trying to silence anyone. Now Weldon ‘s case is before the Texas Supreme Court, which heard oral argument this week.

Weldon’s case might not be a blockbuster—there’s a chance that it’s moot because she’s given up on her 202 petition—but it’s a reminder that S.B. 8 is back. The law might have killed abortion rights in Texas even before the demise of Roe, but now, it may play a surprising role in establishing that there are limits on silencing speech about abortion, even in the places where it’s a crime.

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