“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,” US District Judge Robert Pitman said in the decision, granting a request from the Justice Department, which brought the lawsuit.
“That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
The judge’s order is a victory for abortion rights proponents, who had seen other attempts to block the law stymied by the ban’s novel design. It may, however, be only a temporary victory.
Pitman, in his order, aimed to get around the novel enforcement scheme — which, its supporters have boasted, was put in place to complicate the legal path abortion rights advocates usually take to obtain court orders blocking extreme laws.
Rather than task government officials with enforcing the ban, the Texas Legislature deputized private citizens to bring state court litigation against any clinic that performs an abortion. Those who assist a person obtain an abortion that violates the ban can be targeted with state court litigation as well, under the law, which threatens damages of at least $10,000.
“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 judge wrote Wednesday.
Pitman’s order blocks any officer of the state — including state court judges and court clerks — from enforcing the ban. He explicitly prohibits those officers from “accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit” brought under the state law. The judge also ordered the state to take proactive steps to inform court officials, as well as private individuals seeking to enforce the ban, that the law is currently blocked under his order.
Because government officials aren’t tasked with implementing the law, Texas argues that there is no one that a court can preemptively enjoin, the way the courts would preemptively enjoin officials from implementing the usual types of abortion restrictions that impose criminal or administrative punishments. At a court hearing in the case Friday, an attorney for the state said he could not identify a person that could be targeted by a court in an order blocking the law.
Pitman said in his order Wednesday that “despite the Texas Attorney General’s lack of clarity about what the State would do in the face of a preliminary injunction, this Court trusts that the State will identify the correct state officers, officials, judges, clerks, and employees to comply with this Order.”
Texas Right to Life, an anti-abortion group that had advocated for the measure in the Texas Legislature, called the ruling “wildly broad” and “astonishing” in its “effort to obstruct state judges and court clerks from fulfilling their lawful duties.”
“Until a higher court intervenes, the disappointing reality is that Pitman’s ruling will likely stop the Texas Heartbeat Act from being enforced,” the organization said in the statement.
It took just more than an hour for Texas to indicate on the court’s docket that it would be appealing the order to the 5th US Court of Appeals. That appeals court — perhaps the most conservative in the country — previously rejected a request from clinics that it block the law, as did the US Supreme Court.
In a recent court filing, Whole Woman’s Health, an organization that runs several clinics in the state, said that it would resume providing abortions after six weeks if the judge issued an order blocking the law.
Doing so would still present a legal risk to clinics, as the Texas law says if an order blocking the law is later reversed by a higher court, clinics are liable for abortions performed while the law was temporarily blocked.
“While this fight is far from over, we are hopeful that the court’s order blocking S.B. 8 will allow Texas abortion providers to resume services as soon as possible,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement after the hearing.
The Texas law bans abortions after fetal cardiac activity is detected — a point usually around six weeks into a pregnancy and often before a woman knows she is pregnant. It took effect on September 1 after the Supreme Court declined an emergency request to block it.
But while the law prevents access to abortions in violation of the Supreme Court’s landmark 1973 Roe v. Wade decision, its novel structure has helped it in the courts.
When Attorney General Merrick Garland announced that the Justice Department was bringing a lawsuit of its own, he said that this “unprecedented” design seeks “to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible.”
Garland celebrated the decision Wednesday, saying in a statement that “today’s ruling enjoining the Texas law is a victory for women in Texas and for the rule of law.”
“It is the foremost responsibility of the Department of Justice to defend the Constitution,” the attorney general continued. “We will continue to protect constitutional rights against all who would seek to undermine them.”
With the exception of one doctor who wrote a Washington Post op-ed claiming he had performed an abortion that violated the ban, clinics say that they have been complying with the Texas law in the month it’s been in effect, forcing women to go out of state for the procedure if they’re more than six-weeks into their pregnancies. Planned Parenthood says its Oklahoma providers have seen a 133% increase in patients from Texas, while its providers in New Mexico have seen a 67% jump in patients from the Lone Star State.
In a court filing from Whole Woman’s Health, its president said that among the patients who have shown up their Texas clinics earlier than six weeks into their pregnancies or whom weren’t sure how far along they were, 56% had to be turned away because fetal cardiac activity was nonetheless detected.
This story has been updated with additional developments Wednesday.