District court judge David Peeples ruled on Thursday evening that much of the Texas Heartbeat Act, passed during the regular Texas legislature this year as Senate Bill (SB) 8, is unconstitutional.
The law bans abortions once a pulse can be detected in the womb, which usually but not strictly develops around six weeks of pregnancy. Instead of using more traditional enforcement methods, SB 8 authorizes “any person” to sue anyone besides the mother herself that performs or aids a post-heartbeat abortion. Claimants that prevail in court are entitled to at least $10,000 in damages from the defendant.
Several abortion facilities, counselors, funds, and other industry actors sued pro-life advocacy group Texas Right to Life (TRTL) in state court, altogether comprising 14 different lawsuits. Since the suits shared the same basic facts, premises, and allegation that TRTL had been encouraging and would bring enforcement lawsuits against them under SB 8, the Supreme Court of Texas allowed the cases to be consolidated into a single case that proceeded with oral arguments before Peeples in Austin on November 10.
This week, Peeples ruled much of SB 8’s procedures unconstitutional but declined to recognize a right to abortion before viability under Texas constitutional law.
“Plaintiffs’ motions for summary judgment challenge only the constitutionality of SB 8’s civil procedures. The motions do not ask this court to make rulings on the federal constitutional law concerning abortion restrictions. The federal abortion issues have been left to the federal courts, and therefore this court will consider only SB 8’s new and unique set of civil procedures,” Peeples wrote.
“Because SB 8’s civil procedures are completely new, there is not a single factual precedent for this court to consult-from Texas or from the rest of the United States, from the founding until now.”
TRTL had argued that the line allowing “any person” to sue is upheld by the Supreme Court of Texas’ decision in the 1915 case Spence v. Fenchler, involving a statute granting “any citizen” standing to seek legal action against a bawdyhouse. Peeples, unconvinced, said that SB 8’s unusual procedures made its grant of standing overbroad.
“The statutory grant of standing in Spence empowered citizens to seek an injunction pursuant to the usual court procedures of the time, as in all civil suits. SB 8 grants standing to ‘any person,’ using an unfairly tilted set of procedures, with venue always available at home for Texas claimants, against defendants from anywhere in the state, who are liable for a significant sum,” Peeples wrote.
“The court in Spence was not allowing an El Paso citizen to sue an East Texas person in El Paso to shut down an East Texas brothel.”
Since the abortion industry plaintiffs had sued the TRTL in part because of the group’s encouragement of SB 8 lawsuits, TRTL had also moved to dismiss the case under a state law intended to dispose of lawsuits meant to chill First Amendment rights. Peeples ruled that encouraging SB 8 lawsuits is not protected under the First Amendment since the procedures of SB 8 are unconstitutional.
“If this court is correct that some of SB 8’s core civil procedures are unconstitutional, as the court explains on pages 29-46 below, there is no First Amendment right to encourage persons in Texas and across the United States to file suits to take money from other persons by using an unconstitutional civil procedure,” Peeples ruled.
The judge also ruled against several claims the plaintiffs made, including that SB 8 violates the right to privacy by forcing medical records into public courtrooms.
“The Planned Parenthood Plaintiffs argue essentially that disclosure of the patient’s records in an SB 8 lawsuit would violate the intrusion/personal information aspect of the privacy right. Defendants point out that SB 8 says nothing about discovery of medical records and does not override evidence privileges-SB 8 simply requires that records be kept,” Peeples wrote.
He also fell short of recognizing a right to pre-viability abortions under Texas law, despite federal jurisprudence.
“But Texas constitutional law does not create a state right to end a pregnancy before viability,” Peeples wrote.
“The court respectfully declines to declare that the Texas right to privacy encompasses the right to end a pregnancy before viability.”
Under Peeples’ ruling, TRTL cannot engage in enforcement lawsuits against any of the named plaintiffs, which include two abortion physicians, three branches of Planned Parenthood, an abortion fund, and several plaintiffs that provide funding or referrals to funding for women seeking abortions.
TRTL is preparing to appeal and the case will likely make its way to the Texas Supreme Court.
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