State judge declares Texas abortion law unconstitutional, doesn't stop enforcement

AUSTIN, Texas - 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.

It was not immediately clear how the order would affect procedures in the state. The judge did not issue an injunction to block cases from being filed.

John Seago, legislative director for Texas Right to Life, a prominent anti-abortion group named as a defendant in several suits filed by abortion rights advocates, said his organization is already working to appeal the order.

Seago said although he’s disappointed in the ruling, he doesn’t believe it is a massive blow to the law.

"This doesn't really change the status of Senate Bill 8 at all," he said. "It is just as risky for the abortion industry to perform a post-heartbeat abortion tomorrow as it has been for the last 100 days."

State District Judge David Peeples’ ruling Thursday emphasized that he wasn’t ruling on abortion rights, but rather on the enforcement method that the law employs.

"This case is not about abortion; it is about civil procedure," he wrote in his order.

Peeples echoed concerns on how a similar form of enforcement 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 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 the judges would do their constitutional duty and enforce the law," Peeples said in his order. "Pandora's Box has already been opened a bit, and time will tell."

As of Sept. 1, Texas’ law prohibits abortions after approximately six weeks, defying federal constitutional precedent. It has, until now, escaped most judicial oversight due to the unique way it is enforced. Instead of state officials enforcing the law, anyone who "aids or abets" a disallowed abortion is open to lawsuits, with penalties of at least $10,000 per case if lost.

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

The U.S. Supreme Court took up Texas’ law in two separate challenges more than a month ago over the way it is enforced. Key justices expressed concerns over the law, and it seemed likely that a majority of judges were open to blocking its enforcement.

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

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/12/09/texas-abortion-law/. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.