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On Wednesday evening, U.S. District Judge Robert Pitman blocked SB 8, Texas’ six-week abortion ban, which sought to evade judicial review by allowing bounty hunters to sue abortion providers and anyone who “encourages” them. Pitman’s 113-page opinion is a reprimand to the one-paragraph order of the Supreme Court refusing to stop the law on September 1, when it had already come into force. Pitman, who heard lengthy oral arguments in the case last Friday, explains in detail why federal courts must bar Texas courts from hearing lawsuits brought by anti-abortion vigilantes. In doing so, he answers the many “complex and novel” questions that SCOTUS found too confusing to deal with last month when he refused to outlaw the law. Pitman also sheds light on the continuing crisis for Texans who still need abortion care, describing the heartbreaking consequences of the ban over the past five weeks. Higher courts may well overturn Pitman’s ruling, but they’ll be hard pressed to point out a flaw in his meticulous, fact-based opinion.
Texas law is an explicit attempt to circumvent Roe vs. Wade. Doctors are prohibited by law from terminating a pregnancy after six weeks, when about 85% of abortions take place, with no exceptions for rape and incest. In particular, it does not allow state officials to apply this regulation. Instead, SB 8 allows random people to bring a $ 10,000 lawsuit in Texas state court against those who perform an abortion or “help or encourage.” The abortion providers therefore sued the state judges and clerks who would record, hear and adjudicate these lawsuits. Pitman was set to assess SB 8 before it went into effect on September 1 when the U.S. Circuit’s 5th Court of Appeals abruptly barred him from holding a hearing and then refused to freeze the law. Around midnight the same day, the Supreme Court refused to stop SB 8 by a 5 to 4 vote, citing “complex and novel procedural issues”.
The result was immediate and profound in clinics across the state. Many clinics in Texas have simply stopped providing abortion services for fear of breaking the law. Accounts of pregnant Texans begging for service and harassing clinic workers followed.
On September 9, the US Department of Justice got involved, filing a separate lawsuit to remove SB 8 for federal reasons. The DOJ came with a major advantage: because it represents the United States, it can sue a state directly, which private plaintiffs cannot. By suing Texas itself, the Justice Department jumped on the “procedural question” that had tripped up previous plaintiffs. During last week’s arguments, the State of Texas attempted to argue that SB 8 was deliberately designed to conform to the constitutional rules set out in Roe deer and Planned Parenthood v. Casey and that to her knowledge, no woman had been prevented from having an abortion in the weeks following the entry into force of SB 8. The state’s argument was a gas light tour de force who has faced all the facts reported over the past few weeks.
The DOJ’s gamble that state agents could be prosecuted has paid off, especially in the face of growing evidence that pregnant Texans have suffered material harm as a result of the law. Pitman’s decision features moments of powerful rhetoric, but it is largely devoted to “complex and novel” threshold issues that the Supreme Court majority was too exhausted to investigate when it authorized the law. “There is no doubt that SB 8 was a deliberate attempt by lawmakers,” he wrote, “to prevent review by federal courts which have an obligation to protect the very rights that the law violates. probably”. This effort failed, he noted, because the United States has standing to represent its citizens in their efforts to “defend federal rights.” On behalf of these citizens, he is also empowered to impose the 14th Amendment against a state attempting to “replace” it. As Pitman put it, “when state machinations have effectively cut off private access to federal courts,” the program guarantees “fair action by the United States.”
Because the DOJ removes these obstacles, Pitman wrote, it had correctly challenged SB 8. And on the merits, there is no doubt about the basic facts: Texas law clearly violates Roe deer because it prohibits abortions long before fetal viability. In order to block the law, Pitman drew up an injunction to “stop existing legal proceedings and prevent new lawsuits from being continued by the state judiciary.” He banned judges and state clerks from “accepting or registering” these cases and, for good measure, banned “individuals who act on behalf of the state” from filing them. Finally, it ordered Texas to “post this preliminary injunction on all of its public court websites with a visible and easily understood instruction to the public that the SB 8 lawsuits will not be accepted by the courts in Texas.”
Notably, Pitman denied Texas’ request to immediately suspend its decision. “The state has renounced the right to such housing by pursuing an unprecedented and aggressive plan to deprive its citizens of an important and well-established constitutional right,” he explained. To be clear, this hardly means clinics in Texas will begin providing constitutionally protected abortion services tomorrow. If Pitman’s decision is ultimately overturned, doctors who perform abortions in the meantime can still be sued. But at least for now, the playing field is tilted against overly clever efforts by states to harm women while bypassing judicial oversight.
Perhaps more importantly, Pitman has chosen not to center the suffering of Supreme Court justices who feel besieged by the demands of the Shadow Case, or of Texas, which seeks to overthrow Deer vs. Wade without being harassed by precedents or legal arguments. Instead, note after note, Pitman focuses on pregnant women who have relied on the courts to defend their rights and denounce the state for hurting them, for lying about it and for its cynical attempts. to circumvent the rule of law. “From the moment SB 8 came into effect, women have been unlawfully prevented from exercising control over their lives in a way that is constitutionally protected,” he wrote. “It is up to other courts to find a way to avoid this conclusion; this Court will not sanction one more day this injurious deprivation of such an important right.
One can only guess what will happen to Pitman’s command in 5th Circuit, which could quickly put an end to his injunction. It’s even less clear what could happen to the Supreme Court, where five ultra-conservative justices seem to think the underhanded design of SB 8 gets them away from it. But for the first time in more than a month, Texas women were visible and their needs were urgent in federal court. And while that may not be enough to restore the right to choose, it’s the first glimpse of justice since the twisted Texas law came into effect.
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