An appeals court is likely to weigh in, but on Wednesday U.S. District Judge Robert Pitman ruled in Austin, Texas that the state’s freshly minted all-but-ban on abortions is done. For now.
The Department of Justice brought the case against the state of Texas after it passed a ban on abortions after six weeks of pregnancy.
“From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” Pitman wrote in the ruling (pg. 112). “This Court will not sanction one more day of this offensive deprivation of such an important right.” Whatever higher courts may rule after him. Pitman ruled that the state forfeited any right to a stay on his order pending appeal “by pursuing an unprecedented and aggressive scheme” to undermine “a significant and well-established constitutional right.”
John Seago, legislative director of Texas Right to Life, which supports the law, expects the ruling to be reversed on appeal, saying Pitman’s ruling shows “extreme prejudice.”
But terminating the law with extreme prejudice was exactly Pitman’s intent.
Pitman bluntly ordered that the state “publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.” Pitman preliminarily ordered the state, “including its officers, officials, agents, employees, and any other persons or entities acting on its behalf” to cease all enforcement of the law in any of its aspects. Included in that order are state court judges and state court clerks with any administrative authority. The scope of his ruling means private individuals’ efforts to bring actions in abortion cases is for now moot.
What makes this case especially egregious, Pitman concludes, is that not only does the federal government believe not only because the United States believes S.B. 8 violates Texans’ constitutional rights, “causing widespread, significant injuries,” but alleges Texas lawmakers drafted S.B. 8 specifically “to preclude the ability of those whose rights are being violated from vindicating their rights” (pg. 110).
For a federal judge, them’s fightin’ words. No way would Pitman allow the law’s vigilante enforcement scheme stand as a model for abortion opponents or gun control advocates in other states to follow.
Texas will appeal.
Nancy Northup, the president and chief executive of the Center for Reproductive Rights, said in a statement that clinics her group represents “hope to resume full abortion services as soon as they are able, even though the threat of being sued retroactively will not be completely gone until S.B. 8 is struck down for good.”
Whole Woman’s Health, a group that operates four clinics in the state, said in a statement that it was “making plans to resume abortion care up to 18 weeks as soon as possible.”
A spokeswoman said she did not know precisely when that would be.
Democrats on Capitol Hill celebrated the ruling but called for legislative action, pointing to the precarious state of abortion rights in the hands of a right-leaning Supreme Court that is set to revisit Roe vs. Wade in December. Should the high court decide after hearing a case from Mississippi in December that states can ban the procedure before the point of fetal viability, laws like the one in Texas will quickly proliferate.
“We can’t continue to rely on the whims of the courts in this fight,” said Rep. Diana DeGette (D-Col.), who co-leads Congress’ Pro-Choice Caucus.
DeGette and her colleagues are pushing the Senate to approve the Women’s Health Protection Act, a bill to impose federal protections for abortion access that narrowly passed the House last month and is currently awaiting a Senate vote that it is not expected to survive.
Survival of a nonviable fetus is not a concern for Texas lawmakers. Pitman includes a host of footnotes in his ruling, stories from abortion providers that speak to the impact of the law on women, including the suffering of pregnant women unable to terminate doomed pregnancies.
Footnote 86 (pg. 96), for example:
“One Texas patient had planned her pregnancy but recently learned that the fetus had an anomaly incompatible with life. She was told by her doctor in Texas that there is no exception under S.B. 8 for her circumstances, and that her only options were either to carry to term with the fetus dying after birth, or to leave the state to receive the needed care to terminate the pregnancy. Understandably, she was stricken with grief in dealing with this added burden. Our patient does not want to incur the trauma of being forced to carry the pregnancy to term, and is hoping to move past this loss to continuing planning her family. Faced with this heartbreaking “option,” she decided to make the long trip to Colorado to seek care out of state.”
Should the conservative U.S. Court of Appeals for the Fifth Circuit in New Orleans rule S.B. 8 constitutional, the Supreme Court might decline to hear the case and allow that ruling to stand. If not, the case could end up before the Supreme Court within weeks.
This fight is not over.