Texas abortion law declared unconstitutional by state judge

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A Texas judge on Thursday ruled that the state’s controversial law restricting abortions after about six weeks of pregnancy violates the Texas Constitution, saying it should not be enforced in court.

While Thursday’s ruling is a victory for abortion rights advocates, the order only directly impacts the 14 lawsuits in the case that the judge has overseen. The judge did not issue an injunction to stop cases from being filed, although experts say that would likely be used as precedent in those cases.

Jackie Dilworth, director of communications at Whole Woman’s Health, said the group’s four clinics across the state would not resume all services but would be “looking forward” to doing so if an injunction was issued.

“We are very grateful to Judge Peeples for his ruling today,” Dilworth said, referring to state District Judge David Peeples. “[The law is] depriving Texans of their rights, their autonomy, their quality of life and their health.”

The decision comes as the U.S. Supreme Court considers two separate challenges to Texas abortion law. And any High Court ruling will carry more weight on the issue and set a more definitive trajectory for legal challenges to the law.

John Seago, legislative director of Texas Right to Life, a leading anti-abortion group named as a defendant in several lawsuits brought by abortion rights advocates, said his organization was already working to appeal the order.

Seago said while he’s disappointed with the ruling, he doesn’t think it’s a blow to the law.

“It doesn’t really change the status of Senate Bill 8,” he said. “It is just as risky for the abortion industry to perform a post-pulse abortion tomorrow as it has been in the past 100 days.”

Peeples’ ruling on Thursday underscored that he was not ruling on abortion rights, but rather on the method of enforcement the law employs.

“This case is not about abortion; this is civil procedure,” he wrote in his order.

Peeples echoed concerns about how a similar form of the app could be used to infringe on other constitutional rights, a view expressed by members of the U.S. Supreme Court during oral arguments last month in two other challenges to the law.

“In sum, if SB 8’s civil proceedings are constitutional, a creative new set of laws could emerge year after year, to be enforced by eager ideological plaintiffs, who could sue in their home countries, where judges would do their constitutional duty and uphold the law,” Peeples said in his order. “Pandora’s box has already been opened a bit, and time will tell.”

Since September 1, Texas law has banned abortions after about six weeks, defying federal constitutional precedent. So far, it has escaped most judicial scrutiny due to the unique way it is enforced. Instead of state officials enforcing the law, anyone who “aids or abets” a banned abortion faces prosecution, with penalties of at least $10,000 per case for loss.

“Today’s decision is a beacon of hope for Texans who continue to fight this cruel and unconstitutional near-total ban on abortion,” Marsha Jones, executive director of The Afiya Center, an advocacy group of Black Texans reproductive rights and one of the plaintiffs in the lawsuit. , said in a statement. “Even if this ban is finally blocked permanently, there is still a lot of work to be done to ensure that black communities actually have the capacity to grow the families we want… We need our lawmakers to act.”

The case before Peeples comes from 14 individual cases combined challenging Texas abortion law, commonly known as Senate Bill 8.

The judge ruled that Texas Right to Life could not sue the 14 plaintiffs for helping others obtain abortions prohibited by Texas law. Plaintiffs include doctors, nonprofit organizations and Planned Parenthood. However, other parties or individuals can still sue plaintiffs under abortion law.

“This decision is limited to the named parties. It does not apply to all other potential plaintiffs and defendants. John Doe may sue tomorrow, regardless of this ruling,” Josh Blackman, a law professor at South Texas College of Law Houston, said in an email.

Blackman added that Peeples can only rule on the 14 cases before it — not other cases or the law as a whole.

“A judge cannot declare a law unconstitutional in all contexts. Courts can only make decisions with respect to particular parties in a particular case. But other courts may choose to treat this decision as a precedent (and probably would),” he said.

But even if Thursday’s ruling had prevented enforcement, SB 8 is written with an unusual restriction that allows someone to be sued later if that ruling is overturned on appeal.

Joanna Grossman, a professor at SMU Dedman School of Law, said that means providers may not be comfortable resuming proceedings until all legal battles are fought.

“It was just another thing to go all out on suppliers so that it was just not possible for them to manage their risk,” she said. “I guess they’re all having conversations with their lawyers right now about [whether] it actually gives them the ability to reopen.

The U.S. Supreme Court took up the Texas law in two separate challenges more than a month ago over how it is applied. Leading justices expressed concerns about the law, and it seemed likely that a majority of justices were willing to block its application.

The court is due to issue at least an opinion on the cases before it on Friday, although the court did not specify which cases.

Disclosure: Planned Parenthood and Afiya Center financially supported 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 journalism of the Tribune. Find a full list here.

Correction, December 9, 2021: A previous version of this story misspelled the name of Whole Woman’s Health communications director. She’s Jackie Dilworth, not Jackie Dillworth.