A Texas state judge, relying mainly on state law, on Wednesday struck down the never-before-attempted method that Texas chose for enforcing an abortion law that is the strictest in the nation – a law that is now being reviewed by the U.S. Supreme Court. A ruling by the Justices in Washington could come at any time.
Both the state judge’s ruling and the decision being prepared by the Supreme Court focus on the so-called “bounty hunter” method of handing enforcement over to private citizens. The law bans almost all abortions in the state after six weeks of pregnancy.
Private individuals who sue to enforce the law (“SB8”) can collect at least $10,000 if they win a case against a doctor who performs an abortion banned by the law and against anyone who aids in helping a woman terminate her pregnancy after six weeks. The woman herself cannot be sued.
The Justices in Washington may rule on the enforcement scheme without taking a position on whether the Texas ban is unconstitutional. The U.S. Constitution was not at issue before the state judge, but he did rule that the Texas state constitution does not protect a right to an abortion. The Supreme Court could evade the federal constitutional question by ruling only on the enforcement scheme.
The Supreme Court allowed the state ban to go into effect on September 1, and that has had the practical effect of ending practically all abortions in Texas, as abortion providers warily await the fate of the law in federal and state courts. Although technically in effect now for 100 days, the law is not yet being enforced by anyone. The state judge did not block enforcement, either.
The Supreme Court held a hearing on November 1 on challenges by the Biden Administration and abortion doctors and clinics, focusing on the method of enforcement. Those cases are separate from a Mississippi case, which the Court heard on December 1. That case involves an abortion ban after 15 weeks of pregnancy, and that case does involve a direct attempt to persuade the Court to overrule decisions establishing a constitutional right to abortion.
Wednesday’s state decision was by state District Judge David Peeples of San Antonio, who is mostly retired but was sitting in Austin on a temporary special assignment. He was named to rule on 14 cases, filed by clinics, doctors and abortion rights advocates, seeking to strike down all parts of the law. They did not sue the state government, because it has been excluded from enforcement. Instead, they sued anti-abortion organizations and individuals that have been recruiting people to file enforcement lawsuits.
The judge, while moving forward to consider unspecified issues that he did not decide Wednesday, set the stage for a “prompt” appeal on the validity of the enforcement arrangements.
Judge Peeples wryly summed up in a footnote his view about the unfairness he found in those arrangements: “At the risk of mixing metaphors, one might say SB8 tilts the playing field, or stacks the deck, or puts a thumb on the scales.”
The law does not require any person who goes to court to enforce the law to offer any proof that he or she has suffered any harm, and does not require any justification for getting a damage award of at least $10,000 if the case is successful. It provides little basis for a doctor, clinic, or anyone assisting in an illegal abortion to defend themselves against lawsuits.
The judge said he could not find any example, anywhere in American law or history “from the Founding until now,” that such an enforcement mechanism had ever been adopted or attempted.
Except for one facet of his decision, the judge relied on Texas state laws or on its constitution. Here, in summary, are the key rulings he spelled out in a 48-page decision:
** Struck down the enforcement scheme under the state constitution because that does not allow any private party to sue unless they can prove they have been personally harmed; the abortion law requires no such proof.
** Separately, struck down the enforcement scheme under the state constitution because it wrongly delegates the powers of the state to enforce its laws to private individuals.
** Struck down under the U.S. Constitution’s guarantee of “due process” the part of the law that guarantees at least $10,000 for winning an enforcement case, because the money goes to a person who has not been harmed, so it amounts to punishment, not compensation for a legal injury.
** Rejected outright a claim by the clinics, doctors and abortion advocates that there is a right to abortion under Texas state law or its constitution.
** Also rejected outright their claim that state law gives them a right to privacy in the medical records of abortion procedures.
** Rejected the argument that those who challenged the law did not have a legal right to sue, finding that they satisfied the basic requirements for going to court in Texas.
** Refused, under state law, to dismiss the 14 cases at this stage.
** Wrapped up all of his decisions as a “declaratory judgment,” which is a form that states binding legal conclusions but does not include any order against enforcing any part of the law pending appeals.
** Scheduled a meeting for next week with lawyers in the case, to set up a schedule to deal with remaining issues. Any appeal on the enforcement scheme can go ahead while the judge works further on the other issues.