A federal judge temporarily blocked Texas’s new ban on most abortions, handing a major early victory to the Biden administration as it seeks to overturn the strictest such law in the nation.
The ruling Wednesday by U.S. District Judge Robert Pitman in Austin, Texas, means medical professionals can once again offer abortions in Texas after about six weeks of pregnancy without fear of being sued by members of the public, at least for now.
Texas is likely to challenge the ruling, and injunctions are frequently stayed by federal appeals courts. The U.S. Supreme Court may have the final say on the injunction and eventually on the law itself.
The judge didn’t mince words in his ruling, saying Texas law was “contrived” to get around a constitutional right. He denied Texas’ request to throw out the U.S. Justice Department’s challenge to the law.
“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” wrote Pitman, an appointee of former president Barack Obama. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”
The Justice Department argued the law should be put on hold while the case plays out due to the severe impact it is already having on women, forcing many to drive hundreds or thousands of miles to other states to seek reproductive care — if they have the time and money to do so.
Texas Attorney General Ken Paxton’s office didn’t immediately respond to a voice mail or email seeking comment.
The case has been closely watched by other Republican-led states that view the law as a template for restricting abortions and evading federal legal challenges. Conservatives nationwide are racing to rein in the procedure while seeking to weaken or overturn the landmark 1973 Supreme Court ruling in Roe v. Wade that guarantees access to it.
The law, which took effect Sept. 1, prohibits abortions before most women know they’re pregnant and has no exceptions for rape or incest. Texas lawmakers, like those in many other Republican-led states, say it’s needed to protect life once the first signs of cardiac activity are detected in the fetus.
The novel statute also aims to avoid lawsuits against the state by outsourcing enforcement to private citizens, empowering them to sue doctors or anyone else suspected of violating the ban and to seek bounties of at least $10,000 per illegal procedure.
The judge said an injunction is warranted because the U.S. is well poised to win the case on the merits.
Pitman said people seeking the $10,000 bounties were acting “in active concert with the state” to enforce the ban and “potentially deprive Texans of their constitutional rights.” The judge pointed to the “absurdity and perversity of a law that incentivizes people who do not disagree with abortion care to sue abortion providers to make a quick buck.”
“Before S.B. 8, these individuals would have had neither a cause of action to obtain relief in a suit against abortion care providers nor standing to bring such a suit,” Pitman said. “The state chose to deputize them; the state chose to remove any requirement that they suffer an injury to bring suit (an injury is almost always required to bring suit); and the state chose to incentivize them.”
Justice Department lawyer Brian Netter said during the hearing that the law was designed to “outflank the federal government” by preventing a legal challenge over the constitutionality of the ban, calling it “aggressive and terrifying” and an “open threat to the rule of law.” Although this case is about abortion, he argued, “it’s not hard to imagine other laws,” written in a similar way, designed to create a chilling effect on other constitutional rights, such as the freedom of speech.
The injunction, the first major setback for Texas in its defense of the law, will apply to private citizens who could file lawsuits as well as to state court judges who would hear such cases. Texas had argued it would be unfair to issue an injunction against people who couldn’t be heard in the case and that the U.S. has no authority to sue the state.
The Supreme Court has already signaled deference to the Texas law. The court stunned pro-choice activists and civil rights groups when it allowed the ban to take effect in a 5-4 decision in a different suit, brought by Texas abortion providers.
“We don’t think that the private plaintiffs are put in the shoes of the state,” Will Thompson, a lawyer for Paxton, said at Friday’s hearing. “These kinds of laws are not as unusual as opposing counsel suggests.”
The state has argued that the U.S. doesn’t have the authority to sue to protect a constitutional right to abortion in the first place. While the Constitution’s 14th Amendment has been interpreted as guaranteeing access to abortion, only Congress can empower the Justice Department to sue to enforce such a right by creating a “cause of action,” Thompson said.
The outspoken Republican attorney general has said that a valid legal challenge to the law would require a private citizen to sue someone who assists in an illegal abortion, with the Supreme Court possibly having the final say.
Republicans have expressed optimism that the high court’s new 6-3 conservative majority will rule in their favor in fights over abortion. The court has scheduled arguments for Dec. 1 on its biggest abortion case in a generation, a Mississippi appeal that seeks to overturn Roe v. Wade.
(The case is U.S. v. Texas, 21-cv-00796, U.S. District Court, Western District of Texas, Austin.)