A federal judge
temporarily blocked Texas’ near-total abortion ban Wednesday as part of a
lawsuit the Biden administration launched against the state over its
new law that bars abortions as early as six weeks of pregnancy.
But it’s unclear
how U.S. District Judge Robert Pitman’s order may affect access to
abortions in the state — or if it will at all. The state of Texas
quickly filed a notice of appeal and will almost definitely seek an
emergency stay of Pitman's order in the 5th Circuit Court of Appeals,
which is known as perhaps the nation’s most conservative appellate court.
In a press
release, the ACLU of Texas pointed to the uncertainty on how Wednesday's
order and the state's appeal will affect procedures in the state.
“Though the court’s
ruling offers a sigh of relief, the threat of Texas’ abortion ban still
looms over the state as cases continue to move through the courts. We
already know the politicians behind this law will stop at nothing until
they’ve banned abortion entirely,” Brigitte Amiri, deputy director of
the ACLU Reproductive Freedom Project said in a statement. “This fight
is far from over, and we’re ready to do everything we can to make sure
every person can get the abortion care they need regardless of where
they live or how much they make.”
Until Pitman's order, Texas' new law successfully flouted the constitutional right to have an abortion
before fetal viability established by Roe v. Wade in 1973 and
subsequent rulings. That’s because it leaves enforcement of the new
restrictions not to state officials but instead to private citizens
filing lawsuits through the civil court system.
The order from
Pitman — a 2014 Obama nominee — forbids state court judges and court
clerks from accepting lawsuits that the law allows. Pitman ordered the
state to publish his order on all "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."
He called the
case "exceptional" and ordered that the state and "any other persons or
entities acting on its behalf" be blocked from enforcing the statute. He
acknowledged that his order could be appealed in another court and
added: "this Court will not sanction one more day of this offensive
deprivation of such an important right."
After Senate Bill 8 went into effect Sept. 1, it forced all major abortion clinics to stop offering abortions after an embryo's cardiac activity is detected, which can happen before many people know they're pregnant. Some providers have stopped offering the procedure altogether out of fear of litigation.
The law is
constructed in such a way that people who violate the law, even while it
is being temporarily blocked, could be liable to litigation if the
law’s enforcement were to be reinstated and any existing suits could
conservative lawmakers' decadeslong war to block access to the procedure
and Texas' fast appeal to the 5th Circuit was expected.
"The court will
likely put the trial court judgment on hold," Josh Blackman, a
constitutional law professor at South Texas College of Law Houston, said
in an email. "Clinics that perform abortions now risk facing liability
if the Fifth Circuit stays the ruling."
Parenthood released a statement after Pitman's order but did not say
whether its clinics would resume offering abortion procedures.
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. Planned Parenthood providers across the country have reported
serving Texas patients, who are heartbroken and furious that they’ve
needed to leave home for essential health care — often at great
expense," Alexis McGill Johnson, president of Planned Parenthood
Federation of America said in a statement. "Planned Parenthood will
continue fighting this ban in court, until we are certain that Texans’
ability to access abortion is protected.”
Texas Right to Life, a
prominent anti-abortion organization, has said that if Pitman's order
is reversed, it would consider filing lawsuits against providers or
doctors who perform abortions outlawed under SB 8.
that are committed after September 1, 2021 — there is a four-year
statute of limitations that somebody can retroactively sue for those
abortions — so we are going to be vigilant," said Kim Schwartz, the
organization's media and communication director.
the organization fully expects the 5th Circuit to step in and reverse
Pitman's order. The 5th Circuit has already paused court proceedings in
another lawsuit Pitman is overseeing that was lodged by abortion
providers over the state’s law. The U.S. Supreme Court also eventually
could be asked to step in on this case.
Pitman gave a scathing
response to Texas' request that the court allow it to seek an appeal
prior to blocking the law's enforcement.
"The State has
forfeited the right to any such accommodation by pursuing an
unprecedented and aggressive scheme to deprive its citizens of a
significant and well-established constitutional right," Pitman wrote in
his order. "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."
threat of retroactive lawsuits, the Center for Reproductive Rights said
the clinics and doctors it represents "hope to resume full abortion
services as soon as they are able." The organization acknowledged that
the order is temporary and expected the state would appeal — but called
the ruling a "critical first step."
“For 36 days, patients
have been living in a state of panic, not knowing where or when they’d
be able to get abortion care," Nancy Northup, president & CEO of the
Center for Reproductive Rights, said in a statement Wednesday. "The
cruelty of this law is endless."
Whole Woman's Health said it was making plans"as soon as possible" to resume abortions outlawed under Texas' law.
AMAZING. It’s the justice we have been seeking for weeks," Amy Hagstrom
Miller, CEO of Whole Woman's Health, said in a statement.
of Justice sued Texas on Sept. 9 and alleged the law was deliberately
constructed to flout constitutional rights by making it difficult to
challenge in court. But the state responded that just because the law is
difficult to challenge judicially doesn’t mean it should be overturned.
By empowering anyone
in the nation to file lawsuits against a provider or person who aids
someone in getting an abortion and by barring state enforcement, SB 8
makes it difficult to name the correct defendants in the lawsuits that
would block enforcement of the law.
The U.S. House passed
a reproductive rights bill late last month that would nullify Texas’
controversial near-total abortion ban by codifying the right to an
abortion into federal law. However, the legislation appears unlikely to
pass in the Senate and therefore is unlikely to become law.
ruling is an important step forward toward restoring the constitutional
rights of women across the state of Texas,” White House Press Secretary
Jen Psaki said in a statement. “The fight has only just begun, both in
Texas and in many states across this country where women’s rights are
currently under attack. That’s why the President supports codifying Roe
v. Wade, why he has directed a whole-of-government response to S.B. 8.”
Earlier this year, the Supreme Court decided to not block
the law in a late-night 5-4 vote on the day it went into effect. The
court cited procedural difficulties and tossed that legal case back to
the 5th U.S. Circuit Court of Appeals, where it currently sits. But
justices stressed that the court was not ruling on the statute’s
constitutionality, namely not overruling Roe v. Wade, which helped
established a constitutional right to an abortion.
The Department of Justice’s case is one of many lawsuits filed in an effort to block the enforcement of Texas’ abortion law.
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," U.S. Attorney General Merrick B. Garland
said in a statement. "We will continue to protect constitutional rights
against all who would seek to undermine them.”
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