Judge: Enforcement Mechanism of Texas Abortion Law is Unconstitutional But Near-Ban Remains

State District Judge David Peeples of Austin said the enforcement mechanism of the Texas abortion law, which awards $10,000 judgments to lawsuits against violators, is unconstitutional but the near-total ban remains.

The ruling does not affect the case the law has in the U.S. Supreme Court.

Abortion providers have urged the Supreme Court to block the measure, but it has yet to make a ruling.

Peeples avoided the broader legality of the Texas law called Senate Bill 8. The law, enacted in September, has banned abortions once cardiac activity is detected, typically around six weeks, which is before some women have knowledge of their pregnancy.

The law restricts prosecutors from enforcement and instead allows it from private citizens, who can receive what critics call a "bounty" of $10,000 if they file a successful lawsuit against a provider and anyone who aids a patient in getting an abortion. This enforcement mechanism has allowed the law to basically bypass the ruling made in Roe v. Wade, which gives women a constitutional right to abortion.

"It is one thing to authorize taxpayers or citizens to file suits against government officials to make them obey a law," Peeples wrote. "It is quite another thing to incentivize citizens or persons to file suits against other private citizens to extract money from them, with no pretense of compensating the claimant for anything."

Some are expecting an appeal to be filed.

Texas Abortion Law, Ruling, Unconstitutional
Barbie H. leads a protest against the six-week abortion ban on Sept. 1, 2021, at the Capitol in Austin, Texas. A Texas judge has ruled 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 via AP, File

Planned Parenthood celebrated the state ruling but said abortion services still remain "virtually inaccessible" in Texas, and supporters of the law that was signed by Republican Gov. Greg Abbott said it was unlikely to have any practical impact or even dissuade lawsuits against abortion clinics.

"This doesn't change anything on the ground," said John Seago, legislative director of Texas Right to Life, the state's largest anti-abortion group.

It's impossible to say where things stand inside the Supreme Court, where the justices typically exchange and revise opinions privately on both sides before handing down a decision. With no action so far, it seems clear that the court lacks five votes, a majority of the nine-member body, to put the Texas law on hold.

When abortion providers asked the court to keep the law from taking effect, the justices refused by a 5-4 vote, with Chief Justice John Roberts joining his three liberal colleagues in dissent.

"Texans have the right to access abortion free from vigilante lawsuits that are meant to harass providers and abortion fund allies," Planned Parenthood providers said in a statement. "This ruling is a much-needed step, but abortion rights are still not secure."

The Associated Press contributed to this report.

Texas Abortion Law, Ruling, Unconstitutional, Enforcement Mechanism
The ruling by State District Judge David Peeples of Austin on the Texas abortion law saying its enforcement mechanism is unconstitutional does not affect the case the law has in the U.S. Supreme Court. Abortion providers have urged the Supreme Court to block the measure, but it has yet to make a ruling. In this photo, pro-choice and anti-abortion demonstrators rally outside the U.S. Supreme Court on Nov. 1, 2021 in Washington, DC. Drew Angerer/Getty Images