WASHINGTON - Wednesday night saw Texas' status in abortion access be reaffirmed by a federal judge who issued an order stopping enforcement of a 6-week ban on abortions that he called "flagrantly illegal".
It is unclear what the immediate impact of Robert Pitman's 113-page ruling on US District Judge Pitman will be. Providers will still be able to perform abortions, but it is not clear if they will. Texas sent notice to Pitman just over an hour after he issued his order. Texas is expected to petition the US Court of Appeals, 5th Circuit, to have Pitman's order temporarily revoked. This would allow the law, SB8, to remain in effect.
Pitman's decision came less than one week after hearing arguments on the Justice Department request to block the law. Texas requested that he pause his decision in order to give state officials time for appeal. Pitman refused, stating that Texas had forfeited any right to such accommodation through an aggressive and unprecedented scheme to deny its citizens a well-established constitutional right.
S.B. 8 was signed into law on the day it went into effect. Pitman stated that since the S.B. Other courts might find a way to prevent this conclusion, but this Court will not sanction another day of this offensive deprivation.
The abortion providers made statements, praising Pitman's decision but not stating that they knew not yet if they could schedule abortions that SB 8 had made unlawful. A section of the law states that doctors who perform abortions, or any other person who assists a pregnant woman, based on a court order that was later reversed cannot use that original order to defend themselves if they are sued. Texas Planned Parenthood affiliates released a joint statement stating that while the Department of Justice's quick action and courts order aim to restore Texans access to abortion in their state, we know Texas will immediately appeal. We need the courts to permit care to resume for our patients and providers.
Since Sept. 1, SB 8 is in effect. The law bans abortions that occur after fetal heart activity is detected. This usually occurs in the sixth week of a pregnant woman's pregnancy. Pitman's order prohibits any state actor to take steps that would allow enforcement of the law. This allows private citizens to sue doctors who perform abortions or anyone else suspected of helping a pregnant woman obtain the procedure.
The judge stated that his order forbids any state court clerk or judge from accepting, processing or taking any other action regarding civil lawsuits private citizens could bring under SB 8. The judge stated that he could issue a direct order prohibiting any state court judge or clerk from accepting, processing, or taking any other action on civil lawsuits that private individuals could bring under SB 8. However, he did not believe that the court had the power to do so. He noted that state courts would be restricted from accepting such cases because of his injunction.
It is clear that the Constitution gives individuals the right to have an abortion before fetal viability. Pitman wrote that the State devised a transparent and unprecedented statutory scheme in full knowledge of the fact that it would be unconstitutional to deprive its citizens of this right through direct state action.
Pitman directed Texas to notify state judges and employees of state courts affected by his decision. He also ordered that the ruling be published on all public state court websites. The public was to see an easy-to-understand instruction that S.B. 8 lawsuits will be rejected.
Pitman addressed Texas' argument that siding to the Justice Department would open up the floodgates for federal challenges to state laws. Pitman stated that this case was an exceptional situation in which the constitutional rights of individuals were being harmed and that Texas had created SB 8 to prevent them from taking Texas to court to defend those rights.
Pitman dismissed Texas' claim that a court could not issue an injunction against Texas because the law was enforced through private lawsuits. Pitman criticized the state for using the unusual enforcement structure to both enforce an early-term abortion ban, which courts would almost certainly uphold if it tried to enforce on its own, and to shield from legal challenges.
He stated that his order would send a signal to other states that they cannot attempt to replicate what Texas tried.
A situation in which constitutional rights are not as good as allowed by the state is unacceptable for the American legal system, the judge stated.
After abortion providers failed to convince the US Supreme Court or a federal appeals court to prevent that from happening, SB 8 was implemented at midnight on September 1. All state healthcare providers announced immediately that they would follow the law and cease performing abortions when fetal heart activity could be detected. This is usually in the sixth week of pregnancy. Providers have stated that 85 to 90% of abortions take place after week 6.
Pregnancy terms start on the first day of a person's most recent period. Six weeks typically corresponds to two weeks after a missed period. This is often when many people realize that they are pregnant. Heartbeat laws are sometimes called early-term state abortion bans. However, this term is misleading as a fetus' heart valves still haven't formed at that time. An ultrasound at that stage detects electrical activity. Pitman stated in a footnote, "Heartbeat" was not medically accurate.
The 5th Circuit had upheld the case of abortion providers. On Sept. 9, the Justice Department filed a constitutional challenge to that law.
The Texas law, unlike other early-term abortion bans that were quickly overturned by the federal courts, delegated enforcement to private citizens. The law allows individuals to sue a doctor for performing an illegal abortion. It also permits a prosecutor or other person to interfere with the ability of a clinic to obtain a license to operate.
The law provided financial incentives to people to sue, and there were no limits on who could file a case. One of the few exceptions is that a woman who has had an abortion cannot be sued. A plaintiff who wins can receive $10,000 or more per abortion and their legal costs. A judge can dismiss a case. The defendant cannot recover their legal costs. There is no penalty for bringing an un meritorious case and pulling any abortion providers or anyone else to court. A plaintiff does not have to be related to the patient to comply with the law.
This unusual structure allowed Texas to claim that Pitman did not have the jurisdiction to review a broad constitutional challenge to the law brought forth by the Justice Department or anyone else. Until someone actually brought a case, all cases were based on speculation and no one could be a judge against.
Pitman indicated that he was skeptical about Texas' position that there was no court that could review the constitution of the law. He also called out the state to have tried to find a solution when so many states had been expelled from court for trying to enforce early-term abortion bans which ran counter to Supreme Court precedent. Pitman asked why the state went to such lengths to prevent the six-week ban from being enforced if Texas believed it was constitutional.
Supreme Court precedent has held for decades that state abortion bans prior to a fetus' viable usually at around week 24 are unconstitutional. In a case that began this week, the justices will revisit the issue. It concerns a challenge to Mississippi's 15-week abortion ban.
The Justice Departments case is dragging on and the abortion providers wait to see if the Supreme Court will hear their latest petition to the justices to intervene. The 5th Circuit placed that case before Pitman, as Pitman had rejected an earlier attempt by the defendants in that case to dismiss the case. After a majority of justices refused to disturb the 5th Circuit's handling of this case, the law was enacted.
Later, a panel of 5th Circuit judges explained that abortion providers had a good chance of losing on the question whether they can sue. The case is currently awaiting the appeals court's decision. On Sept. 23, the abortion providers asked the justices not to proceed with the 5th Circuit, and instead ask for the court's immediate attention on whether anyone can sue. The justices have not yet taken any action on this question.