State judge rules SB8 is unconstitutional

Sounds a little better than it actually is, but it’s still pretty good.

Right there with them

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 Dillworth, 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,” said Dillworth. “[The law is] depriving Texans of their rights, autonomy, quality of life, and health.”


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.”


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 only rule 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.”

See here for the background, and here for a copy of the judge’s order. The ruling will be appealed – since this was heard in Travis County, that means that the Third Court of Appeals will get it next, unless there’s some mechanism to have it go straight to the Supreme Court. There is of course the still-pending case before SCOTUS, which could generate a ruling as soon as today or sometime later or maybe never, who even knows. I suppose with the violence they plan to do to reproductive rights in the Mississippi case, the assassins on the high court could make a cynical nod towards “moderation” by putting the kibosh on Texas’ law. But again, who knows what they’ll do. In the meantime, now we wait for the next steps in this case. It’s a start.

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4 Responses to State judge rules SB8 is unconstitutional

  1. C.L. says:

    I’m no lawyer, but if there’s no civil or criminal penalty associated with the act (providing an abortion), how can the law stand ?

    Isn’t that how some of the Affordable Care Act was dismissed ? No enforcement arm ?

  2. Kibitzer Curiae says:

    Re: “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.”

    That does not appear to be correct because an agreed temporary injunction is supposed already in place, and remains in place since the case is not over yet.

    The opinion order handed down Dec 9 covers three pending motions (on which a hearing on Zoom took place a month ago) with the following outcomes:

    1. Plea to the Jurisdiction by the Defendants denied – not appealable
    2. Defendants’ Motion to Dismiss under the Texas Citizen Participation Act – denied and immediately appealable (overlapping with issues covered by the summary judgment motion under the “prima face” prong of the TCPA analysis).
    3. Plaintiffs’ Motion for summary judgment (declaratory judgment re: constitutional challenge) granted in part, denied in part – not appealable. Some constitutional arguments were sustained, others denied.

    Judge Peeples promised to meet with lawyers to discuss pending matters and to sever the summary judgment portion of the case so that those rulings will be final and can be appealed immediately.

    The MDL judge won’t have the last word on the relevant legal issues and some of the rulings seems rather shacky. The “due process” basis for invalidation is particularly strange since due process kicks in as soon as an SB8 suit is filed, and is therefore subject to all the normal court rules govering litigation and ongoing oversight by the judge and his staff. And the laments over judgment enforcement mechanisms don’t concern anything that doesn’t apply in other civil cases when a judgment is not paid. Nothing special really.

    Notably, the motion for a permanent anti-suit injunction against TRTL was denied, but the rationale was procedural: a factual dispute that cannot be resolved through the summary judgment procedure, which relies only on exhibits and affidavits (i.e., “paper” evidence) rather than live testimony. So this claim for relief was reserved for trial.

  3. Pingback: SCOTUS allows providers’ lawsuit against SB8 to proceed – Off the Kuff

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