State judge declares Texas abortion law unconstitutional — but does not stop it from being enforced

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

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.

Although Thursday’s ruling is a win for abortion rights advocates, the order only has direct consequences for the 14 lawsuits in the case that the judge oversaw. The judge did not issue an injunction to block cases from being filed, though experts say it would likely be used as precedent in those cases.

Jackie Dilworth, communications director at Whole Woman’s Health, said the group’s four clinics across the state will not resume full services but would be “eager” to do so if an injunction were issued.

“We are so 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, autonomy, quality of life, and health.”

The ruling comes as the U.S. Supreme Court is considering two separate challenges to Texas’ abortion law. And any decision from the high court will hold more weight on the issue and spell out a more definitive trajectory for the law’s legal challenges.

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.”

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.

“Today’s ruling is a beacon of hope for Texans continuing to fight against this cruel and unconstitutional near-total abortion ban,” Marsha Jones, executive director of The Afiya Center, an advocacy group for Black Texans’ reproductive rights and one of the lawsuit plaintiffs, said in a statement. “Even if this ban is eventually permanently blocked, there’s so much work still to be done to ensure that Black communities actually have the ability to grow the families we want … We need our lawmakers to take action.”

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

The judge ruled that Texas Right to Life cannot file lawsuits against the 14 plaintiffs for helping others get an abortion disallowed by the Texas law. The plaintiffs include doctors, nonprofit organizations and Planned Parenthood. However, other parties or individuals can still sue the plaintiffs under the abortion law.

“This ruling is limited to the named parties. It does not apply to all other potential plaintiffs and defendants. John Doe could file suit tomorrow, without regard to this ruling,” Josh Blackman, a law professor at South Texas College of Law Houston, said in an email.

Blackman added that Peeples can rule only on the 14 cases before him — not on any other cases or the law overall.

“A judge can’t declare a statute unconstitutional in all contexts. Courts can only issue rulings with regard to particular parties in a particular case. But other courts can choose to treat this ruling as precedential (and likely would),” he said.

But even if Thursday’s ruling had stopped the law from being enforced, SB 8 is written with an unusual restriction that allows someone to later be sued 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 procedures until all the court battles are waged.

“It was just another thing to stack the deck against providers so that it just wasn’t possible for them to manage their risk,” she said. “I assume they’re all having conversations with their lawyers right now about [whether] this actually gives them any ability to reopen.”

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.

Disclosure: Planned Parenthood and Afiya Center have been financial supporters of 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 Tribune’s journalism. Find a complete list of them here.

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