Texas judge hears legal challenges to restrictive abortion law on Wednesday

Madlin Mekelburg
Austin American-Statesman

A state district judge in Austin heard arguments Wednesday in more than a dozen legal challenges to Texas’ six-week abortion ban in what could be the first test of the law’s constitutionality.

The consolidated lawsuits seek to declare the Texas law unconstitutional and prevent Texas Right to Life from bringing civil suits under the law against the plaintiffs in the case, which includes abortion providers, doctors, organizations that provide funding for abortions, social workers and others.

But attorneys for the anti-abortion organization argued Wednesday that the abortion providers and other challengers have sued the wrong people in their effort to void the Texas law, which allows any private individual to sue abortion providers or anyone who aids or abets a procedure that violates the six-week ban.

“There are literally millions of other people who could sue them,” said Heather Hacker, an attorney for Texas Right to Life, and John Seago, the group’s legislative director who is also named in the lawsuits. “They will not change their behavior as a result of any relief this court grants, so it is basically useless.”

More:As Supreme Court weighs Texas abortion law, opposing sides focus on its impact

A decision in the plaintiff’s favor would not block enforcement of Senate Bill 8, the most restrictive abortion law in the nation that is also the subject of two federal lawsuits pending before the U.S. Supreme Court.

But should David Peeples, the retired state magistrate judge appointed to preside over the issue, declare the law unconstitutional and prevent Texas Right to Life from suing the entities who brought the lawsuits, it would have implications for other court battles over the law.

“Even though only one party would be enjoined, the decision the court made with regard to constitutionality would have a ripple effect to every other district court,” said Jennifer Ecklund, an attorney representing several of the plaintiffs in the case.

Peeples questioned the scope of the law during Wednesday’s hearing, raising similar questions as were discussed by U.S. Supreme Court justices last week, asking whether the enforcement mechanism employed in Senate Bill 8 could be applied in the future on different issues.

“I’m just wondering if Pandora’s box is getting ready to be opened,” he said.

More:Does the Texas abortion law protect victims of sexual assault?

The lawsuits in state court on Wednesday are challenging the constitutionality of Texas' abortion law.

Complicated legal questions

The architects of the Texas law, including state Sen. Bryan Hughes, R-Mineola, and Seago, said during this year’s legislative session that the law was written specifically to withstand legal challenges. Federal courts have struck down laws in nearly a dozen other states that would similarly prohibit abortion before fetal viability, but those laws left enforcement up to the state.

The civil lawsuit component of SB 8 has left state and federal courts to contend with complicated legal questions about jurisdiction and standing. It has been at the center of all of the legal challenges pending against the law. 

"We are not challenging the six-week ban directly," said Elizabeth Myers, one of the attorneys representing the plaintiffs in Wednesday's case. "Frankly, for purposes of our summary judgment, you can assume that the six-week ban is fine and that it is the enforcement mechanism that is the problem."

More:Fact-check: Did Roe v. Wade mark 'the end of women dying from abortions'?

Opponents of the law have argued that by removing the state’s role in enforcing the ban, the state is effectively closing the door on traditional avenues of judicial review. Typically, affected parties can sue the state directly to challenge laws adopted by the state's legislature.

'Protected speech activities'

Myers and other attorneys for the plaintiffs argued Wednesday that one glaring issue with the law is that any private citizen can bring a civil suit under the law, whether they are connected to the abortion in question or not. Unlike in other civil proceedings, plaintiffs would not have to prove that they experienced harm or suffered an injury caused by the target of their lawsuit.

Attorneys for Texas Right to Life and Seago frequently noted during the hearing that the group has yet to sue over the law and all of their actions are legal, including advocating for the passage of the law at the Legislature earlier this year and temporarily operating a digital tip line soliciting information about possible violations of the law.

“Those are all core First Amendment protected speech activities,” Hacker said.

Peeples did not take action from the bench Wednesday, but indicated that he planned to move swiftly on the issue.

"It just seems to be in the public interest that we decide this sooner rather than later," he said.