Texas judge rules some provisions of state's restrictive abortion law violate Texas Constitution

Madlin Mekelburg
Austin American-Statesman

A state district judge in Austin on Thursday said some elements of Texas' restrictive abortion law are unconstitutional and should not be enforced, marking the first time a court has weighed in on the law's constitutionality since it was enacted in September.

The judge did not issue an injunction to block the law from being enforced. Instead, Thursday's order will be the basis of an ongoing legal battle in trial court between several abortion providers and Texas Right to Life, an anti-abortion organization.

In the order, District Judge David Peeples said the enforcement mechanism employed in Senate Bill 8 denies due process of law and violates the Texas Constitution by allowing anyone to file suit against abortion providers and other individuals, without first having to prove they have been harmed by those individuals' actions.

A state district judge said some aspects of Texas' restrictive abortion law are unconstitutional, the first time a court has weighed in on the merits of the law.

The enforcement component of Senate Bill 8 is the center of numerous legal challenges to the law, which prohibits abortion after six weeks of pregnancy. The law explicitly prohibits the state from enforcing the ban and instead allows private individuals to sue abortion providers or people who "aid and abet" a procedure in violation of the law. Successful litigants can collect at least $10,000.

More:Texas judge hears legal challenges to restrictive abortion law on Wednesday

Peeples was tasked with considering more than a dozen legal challenges to the law filed by abortion providers, doctors, organizations who provide funding for abortions, social workers and others.

The cases were consolidated because they sought the same outcome: to declare the law unconstitutional and prevent Texas Right to Life from bringing a civil lawsuit allowed under SB 8 against any of the plaintiffs in the case.

Although Peeples said some elements of the law are unconstitutional, Senate Bill 8 is still in effect in Texas because the case is limited to the plaintiffs and Texas Right to Life. The organization has appealed his order to the 3rd Court of Appeals and the case could make its way to the Texas Supreme Court, where a ruling could have broader impact outside the confines of this case.

"This ruing affirms what (our clients) have been trying to say, which is that they are good people doing their jobs and trying to help pregnant Texans when they need it," said Jennifer Ecklund, an attorney representing several of the plaintiffs in the case, in an interview. "This is the first step towards a statewide realization that that's true."

Kimberlyn Schwartz, spokeswoman for Texas Right to Life, said the organization was targeted by this lawsuit not for violating the constitution, but "because of our advocacy for and publicity of this life-saving law."

“The abortion industry’s lawsuit abuses the judicial system and turns this court into a mere platform for airing criticisms against the boldest pro-life law to take effect since Roe v. Wade," she said in a statement.

More:How the Supreme Court's ruling on a Mississippi abortion law will affect Texas

In his Thursday order, Peeples called the law "unique and unprecedented" and said there is no existing case law that deals with "outsourcing law enforcement to private parties who act with no supervision or guidance from a statute or from any state official."

Peeples said this represents an "unconstitutional delegation of enforcement power to private persons" and outlined a plausible scheme that would be legal under the law.

"SB 8 grants to 21 million Texans the power to bring cases without any guidance, supervision, or screening," he wrote. "There is no guidance in the statute and no guidance from any public official. There is nothing to prevent a billionaire from Texas or another state, motivated by ideology, from setting up an enforcement system by locating a few willing Texans who live in favorable counties of venue to file suits in their home counties and enforce SB 8 across Texas."

He also took issue with the fact that, unlike in other civil lawsuits, the individuals who can sue abortion providers under SB 8 do not have to have any connection to the abortion procedure at issue in their lawsuit or prove that they sustained any injury or harm as a result of an abortion provider's actions.

More:Her fetus no longer viable, Texas woman describes crossing state lines to have an abortion

In traditional civil lawsuits, people can seek damages to address injury or harm and to cover the cost of attorneys fees. But under an SB 8 lawsuit, any person can collect at least $10,000 from providers or other individuals for identifying an abortion that is banned under the law.

"It is one thing to authorize taxpayers or citizens to file suits against government officials to make them obey a statutes sometimes do," Peeples wrote. "It is quite another thing to incentivize citizens or persons to file suits against other private citizens to extract money from them, with no pretense of compensating the claimant for anything."

Peeples also echoed concerns raised during arguments before the U.S. Supreme Court in a separate legal challenge to the law, questioning whether declaring SB 8 constitutional could permit Texas (or other states) from employing a similar strategy to prohibit other constitutionally protected activity.

"If SB 8's civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where they judges would do their constitutional duty and enforce the law," he wrote. "Pandora's Box has already been opened a bit, and time will tell."