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Citizen Enforcement of Abortion Law Violates Texas Constitution, Judge Rules

HOUSTON — A state district court judge in Texas ruled on Thursday that the unique enforcement scheme of a restrictive abortion law violated the State Constitution by allowing any private citizen to sue abortion providers or others accused of breaking the law.

In a 48-page opinion, Judge David Peeples found that the approach, which had been seen by anti-abortion groups as its greatest strength, unconstitutionally granted standing to those who were not injured, denied due process and represented an “unlawful delegation of enforcement power to a private person.”

While deemed an important victory for abortion rights groups, abortion providers said on Thursday that they would not immediately resume performing the procedure after about six weeks of pregnancy.

The decision came in response to a number of lawsuits brought in Texas state court by abortion providers and others against Texas Right to Life, an anti-abortion group that had lobbied for the law. The group immediately filed a notice of appeal on Thursday.

“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,” Kimberlyn Schwartz, a Texas Right to Life spokeswoman, said in a statement.

The abortion law, known in Texas as Senate Bill 8 or the “heartbeat law,” prohibits abortions after cardiac activity has been detected, usually around six weeks of pregnancy. By expressly prohibiting state officials from enforcement, and relying instead on individuals, the law avoided the usual process of legal scrutiny and went into effect in September after the U.S. Supreme Court declined to step in.

The Supreme Court heard arguments about the law last month as part of an expedited process and is expected to rule soon.

The court has also been weighing arguments over a Mississippi law in a case seen as a direct challenge to Roe v. Wade, the 1973 decision that prevented states from banning abortions before fetal viability. The Mississippi law bans the procedure after 15 weeks, or about two months before viability.

In Texas, abortion providers have said they were abiding by the new law because of the threat of legal action from any individual against someone who performs or “aids and abets” the procedure, including clinic staff or even the person who provided transportation to the clinic.

“We have said all along that in order to fully restore abortion access in Texas, we need a decision in the U.S. Supreme Court or the Texas Supreme Court,” said Julie Murray, a senior staff attorney at Planned Parenthood. “Today’s decision is a step in the right direction, but it is not enough relief for abortion providers.”

In his opinion, Judge Peebles wrote that the Texas Legislature did not have a right under the state’s Constitution to allow people who had not suffered any injury from a violation of the abortion law to come into court and sue. He also found that the granting of awards of “no less than $10,000” to anyone successful in their suits violated the right to due process under the 14th Amendment to the U.S. Constitution.

Judge Peebles wrote that the law’s mechanism of delegating enforcement power to private citizens, if found constitutional, could be applied to all manner of contentious issues, including guns, same-sex marriage, freedom of speech and climate change.

“We are a diverse and creative people and it seems naïve to hope that these procedures will be cabined voluntarily,” he wrote.

Abortion providers said that if the ruling were upheld by the State Supreme Court, they would again begin providing abortions beyond six weeks of pregnancy because the law could not be enforced.

The number of abortions performed in Texas fell by roughly half in the weeks after the law went into effect, a fact that anti-abortion groups have credited to the law’s unique structure.

Ruth Graham contributed reporting.

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