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Judge says Texas abortion law’s enforcement mechanism unconstitutional

Barbie H. leads a protest at the Texas Capitol in Austin against the six-week abortion ban on Sept. 1. A Texas judge ruled Thursday that the enforcement scheme behind the nation’s strictest abortion law is unconstitutional in a narrow ruling that still leaves a near-total ban on abortions in place. (Jay Janner/Austin American-Statesman/AP)
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The enforcement mechanism for Texas’s abortion ban, which is the most restrictive in the nation and effectively outlaws the procedure, violates the Texas constitution, a state judge ruled Thursday.

While a win for abortion rights advocates, the narrow decision by District Judge David Peeples of Austin does not include an injunction that would halt litigation against doctors or others who “aid or abet” an abortion. Texas Right to Life, an antiabortion group that supported the legislation, said it will appeal the ruling. Meanwhile, according to abortion providers, the law, known as S.B. 8, remains in effect, continuing a near-total ban on abortion before many people know they’re pregnant at six weeks.

A spokeswoman for Whole Woman’s Health, which operates four abortion clinics in Texas, said it will not resume services until an injunction is granted.

“We are so grateful to Judge Peeples for his ruling today,” Jackie Dilworth shared in an emailed statement. “We couldn’t agree more: SB 8 IS UNCONSTITUTIONAL.”

An abortion doctor from Kansas City, Mo., travels across state lines every month to provide care at clinics in the Midwest. (Video: Whitney Leaming, Alice Li/The Washington Post)

The law’s teeth, a $10,000 award to be paid by the defendant for any successful lawsuit brought against an abortion provider, is unconstitutional for several reasons, according to the judge: Authority would be in the hands of private citizens, including people unaffected by abortions who cannot take money from a person who hasn’t harmed them in any way. The lawsuits stemming from the ban would also subvert due process, Peeples wrote.

The judge considered the other possible scenarios that such an unusual enforcement tactic could be deployed, offering examples of laws that swap the words about abortions for gun owners or bakery owners who refuse to decorate a cake with a message they believe is offensive.

“Pandora’s Box has already been opened a bit, and time will tell,” he wrote.

Peeples ruled the state’s courts should not enforce the law’s use of lawsuits to delegate authority. The Supreme Court heard arguments about the Texas law last month and a decision is still pending.

Peeples’s decision comes after abortion providers and others filed 14 lawsuits against Texas Right to Life, an antiabortion organization that lobbied for the legislation.

Texas Right to Life spokeswoman Kimberlyn Schwartz attacked the plaintiff’s case, arguing the lawsuits target the organization for its advocacy of the 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 wrote.

Supreme Court seems willing to allow challenge of Texas’s restrictive abortion law

The Texas ruling, which will be subject to further court battles, comes at a perilous time for abortion rights advocates. In addition to debating the Texas law, the Supreme Court is also considering arguments over a Mississippi measure that takes direct aim at Roe v. Wade and, if upheld, would undermine the historic precedent.

In a hearing earlier this month, the court’s six conservative justices signaled they were inclined to uphold the Mississippi law, which would represent a major restriction of abortion rights.

Ghazaleh Moayedi, an obstetrician and gynecologist who provides abortions in Texas, celebrated the Thursday ruling but said a long road remains before women can be guaranteed care.

“A lot more legal hoops and appeals before people can get abortion care,” Moayedi said on Twitter. “But for today, we won.”

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