"Pandora's box": Texas judge tosses enforcement provision of abortion "ban"

AP Photo/Jose Luis Magana

“Pandora’s box,” indeed, but Judge David Peeples didn’t entirely close its lid in his ruling late yesterday. Abortion providers wanted an injunction against the entirety of Texas’ abortion “ban” allowing anyone standing to sue when abortions take place. The district court took a far narrower focus, leaving the ban in place but enjoining the civil-court enforcement, as Judge Peeples ruled it violates the state constitution:

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.

This looks like legal limbo rather than a decision. Peeples’ ruling essentially freezes the field in Texas in anticipation of the Supreme Court’s decision on whether to take action against SB8. Bench Memo’s Ed Whelan wonders whether that might get expedited, or just live in a similar limbo until a decision on Dobbs:

The court will likely let everything wrap up into Dobbs, especially if that case ends up reversing Roe. However, it’s at least somewhat likely that the Supreme Court will give heavy consideration to Peeple’s line of thinking on SB8, if they decide to get that decision published first:

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.

The reference to Pandora’s Box is telling. The law upends the issue of standing in a manner that will turn courts into free-for-alls, but may make lawyers even richer than before. Judges and justices will likely quail at the idea of opening up lawsuits just on the basis of being offended, as they will end up buried in nuisance lawsuits. The wider this idea gets adopted, the more that the justice system will choke on the workload.

The Supreme Court won’t be immune to that either, and with Dobbs they have an opportunity to deal directly with abortion. If they deny Dobbs, then the Texas law is moot anyway. If they rule in favor of Mississippi, then Texas can craft a real law restricting abortions to the heartbeat standard that the state itself can enforce, and it won’t need SB8. In neither case do they need to prop open the “Pandora’s Box” of universal standing. Time will tell, indeed.

Abortion providers cheered Peeples’ ruling, but that’s shortsighted. By not enjoining SB8 entirely, the state has an opportunity to amend it for proper enforcement by the state rather than through “vigilante” lawsuits. If the Supreme Court overturns Roe, that will happen very quickly in Texas.